Cambridge Legal Studies Preliminary textbook for year 11 and 12 students (HSC). Good luck!...
CAMBRIDGE
LEGAL STUDIES PRELIMINARY
SECOND EDITION
Paul Milgate Kate Dally Phil Webster Daryl Le Cornu Tim Kelly
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CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi Cambridge University Press 477 Williamstown Road, Port Melbourne, VIC 3207, Australia www.cambridge.edu.au Information on this title: www.cambridge.org/9780521134699 © Paul Milgate, Kate Dally, Phil Webster, Daryl Le Cornu, Tim Kelly 2010 First published 2006 Second edition 2010 Edited by L. Elaine Miller, Otmar Miller Consultancy Pty Ltd Designed and typeset by Mason Design Printed in China by Printplus National Library of Australia Cataloguing in Publication data Milgate, Paul. Cambridge preliminary legal studies / Paul Milgate … [et al.]. 2nd ed. 9780521134699 (pbk.) Includes index. Bibliography. For secondary school age. Law—Australia—Textbooks. Law—Examination—Study guides. Higher School Certificate Examination (N.S.W.)—Study guides. Milgate, Paul Dally, Kate. Webster, Phil. Le Cornu, Daryl. Kelly, Tim. 349.94 ISBN 978-0-521-13469-9 paperback Reproduction and Communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this publication, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 Email:
[email protected] Reproduction and Communication for other purposes Except as permitted under the Act (for example a fair dealing for the purposes of study, research, criticism or review) no part of this publication may be reproduced, stored in a retrieval system, communicated or transmitted in any form or by any means without prior written permission. All inquiries should be made to the publisher at the address above. Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Information regarding prices, travel timetables and other factual information given in this work are correct at the time of first printing but Cambridge University Press does not guarantee the accuracy of such information thereafter. Student CD-ROM licence Please see the file ‘licence.txt’ on the Student CD-ROM that is packed with this book. Aboriginal and Torres Strait Islander people are respectfully advised that photographs of deceased people appear in this book and may cause distress.
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Contents
About the authors
viii
Acknowledgements
ix
Introduction
x
Using Cambridge Legal Studies – Preliminary
xi
Glossary of key words
xiv
Part I: The legal system
1
CHAPTER 1 – BAS IC L EGAL C ON C EP TS
2
The meaning of law
4
Customs, rules and law
5
Values and ethics
7
Characteristics of just laws
8
The nature of justice
8
Procedural fairness and the principles of natural justice
9
The rule of law
10
Anarchy and tyranny
12
Chapter review
14
CHAPTER 2 – S OUR C ES OF C ON T EM P O RA RY A U STRA L I A N L AW
16
Australia’s legal heritage
18
Common law
18
Court hierarchy: Jurisdiction of state and federal courts
22
Statute law
27
The Constitution
31
Aboriginal and Torres Strait Islander Peoples’ customary laws
43
International law
48
International organisations
51
Relevance of international law to Australian law
55
Chapter review
56
CHAPTER 3 – C L AS S IF IC AT ION OF LAW
58
Public law and private law
60
Criminal and civil court procedures
65
The legal profession
70
Common and civil law systems
73
Chapter review
74
iii
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iv
C H APT ER 4 – L AW R E FO RM
76
What is law reform?
78
Conditions that give rise to law reform
78
Agencies of reform
88
Mechanisms of law reform
92
Chapter review
94
C H APT ER 5 – L AW R E FO RM I N A C TI O N
96
Topic 1: Law reform and native title
98
Conditions that lead to law reform on native title
98
Operation of the legal system in relation to native title
101
Effectiveness of law reform in relation to native title
109
Topic 2: Law reform and sport
110
Conditions that lead to law reform in sport
110
Agencies of law reform in sport
114
Mechanisms of law reform in sport
116
Effectiveness of law reform in the sporting world
117
Topic 3: Law reform and sexual assault
118
Conditions that lead to law reform relating to sexual assault
118
Agencies of law reform relating to sexual assault
120
Mechanisms of law reform relating to sexual assault
122
Effectiveness of law reform relating to sexual assault
124
Chapter review
125
Part II: The individual and the law
129
C H APT ER 6 – Y OUR RI G H TS A ND RESP O NSI B I L I TI ES
130
What are rights and responsibilities?
132
The nature of individual rights
133
Individuals’ rights and responsibilities in relation to the state
136
International protection of rights
143
Chapter review
146
C H APT ER 7 – R ES OLV I NG DI SPU TES
148
Introduction
150
Law enforcement agencies
150
Disputes between individuals
154
Disputes with the state
158
Chapter review
167
C H APT ER 8 – C ON T EM PO RA RY I SSU ES: TH E I NDI V I DU A L A ND TE C H NO L O G Y
168
The scope of new technology
170
Legal issues in cyberspace
171
Privacy, safety and censorship
178
Rights in cyberspace
182
C a m b r i d g e L e g a l S tu d ie s – Pre limin ary
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Current status and sources of law in cyberspace
183
Future directions
185
Conclusion
188
Chapter review
189
AREA 1 : GR OUPS OR IN DIVIDUAL S SU FFE RI NG DI SA DVA NTA G E
192
CHAPTER 9 – C H IL DR EN AN D Y OUNG P E O PL E
192
Introduction
194
Children, young people and the law
201
Mechanisms for protecting the rights of children and young people
201
Responsiveness of the law
205
Conclusion
209
Chapter review
210
CHAPTER 10 – WOMEN
212
Introduction
214
Women and the law
214
Mechanisms for achieving justice for women
220
Responsiveness of the legal system to efforts to achieve justice for women
227
Conclusion
230
Chapter review
231
AREA 2 : EVEN T S WH IC H H IGH L IGH T L E G A L I SSU ES
234
CHAPTER 11 – T H E BAL I BOMBIN GS
234
Introduction
236
9/11 and global terrorism
236
Mechanisms for achieving justice after the Bali bombings
240
Legal responses to terrorism
244
Conclusion
247
Chapter review
248
CHAPTER 12 – T H E PORT ART H UR M A SSA C RE
250
Introduction
252
The Port Arthur massacre
252
Mechanisms for achieving justice after the Port Arthur massacre
258
Responsiveness of the legal system to the Port Arthur massacre
260
Conclusion
263
Chapter review
264
AREA 3 : IN DIVIDUAL S OR GR OUPS I N C O NFL I C T WI TH TH E STATE
266
CHAPTER 13 – MOH AMED H AN EEF
266
A brief history of the Mohamed Haneef case
268
Mechanisms for achieving justice in the Mohamed Haneef case
274
C o n tents
Part III: Law in practice
v
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Responsiveness of the law
279
The future for Australia
281
Chapter review
282
C H APT ER 14 – OUT L AW M O TO RC YC L E G A NG S (O M C G s )
284
Outlaw motorcycle gangs in Australia
286
Mechanisms for achieving justice in relation to OMCGs
293
Responsiveness of the law
301
Chapter review
302
AR EA 4: C R IMIN AL O R C I V I L C A SE S TH AT RA I SE I SSU ES OF IN T ER ES T T O S T U DENTS
304
C H APT ER 15 – F IL E SH A RI NG A ND DI G I TA L C O P YRI G H T
304
File sharing, digital copyright and the law
306
Mechanisms for achieving justice in relation to digital copyright
308
Responsiveness of the law
314
The future of digital copyright in Australia
316
Chapter review
318
C H APT ER 16 – DR UG TE STI NG
320
Introduction
322
Mechanisms for achieving justice in drug testing
326
Responsiveness of the law
335
Conclusion
337
Chapter review
338
Answers to multiple-choice questions
340
Glossary
341
Index
348
Student CD Contents Additional chapters C H APT ER 17 – GR OU PS O R I NDI VI DU A L S SU FFERI NG DI SA DVA NTA G E : MIGR AN T S
Introduction Migrants and the law Mechanisms for achieving justice for migrants Responsiveness of the legal system to migrants Future directions Chapter review
vi
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CHAPTER 18 – GR OUPS OR IN DIVID U A L S SU FFE RI NG DI SA DVA NTA G E: AB ORIGIN AL AN D T OR R ES S T R AIT ISL A NDERS
Aboriginal and Torres Strait Islanders and the law Mechanisms for achieving justice Responsiveness of the law Additional material for Student Book chapters
CHAPTER 9 – GR OUPS OR IN DIVIDU A L S SU FFERI NG DI SA DVA NTA G E : CHILD REN AN D Y OUN G PEOPL E CHAPTER 10 – WOMEN : GR OUPS OR I NDI V I DU A L S SU FFE RI NG DI SA DVA NTA G E CHAPTER 11 – EVEN T S WH IC H H IGH L I G H T L E G A L I SSU ES:
C o n tents
CHAPTER 8 – C ON T EMPOR ARY IS S U E : TH E I NDI V I DU A L A ND TE C H NO L O G Y
THE B ALI BOMBIN GS CHAPTER 12 – EVEN T S WH IC H H IGH L I G H T L E G A L I SSU ES: THE PORT ART H UR MAS S AC R E
vii
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About the authors
Paul Milgate
Kate Dally
Daryl Le Cornu
Tim Kelly
Paul Milgate DipTeach BEd is Head of Legal Studies, Business Studies/Commerce and Economics at Xavier Catholic College on the north coast of NSW. He has extensive experience in Legal Studies, having taught it since its inception. He was a foundation member of the North Coast Legal Studies Teachers Association, which conducts student seminar days and provides funding for professional development in collaboration with Southern Cross University Faculty of Law and Justice.
Kate Dally BA DipEd is Head Teacher of Social Sciences at Birrong Girls High School in Sydney. She has extensive experience, having taught Social Sciences for the past 17 years. Her experience also covers HSC marking in both Legal Studies and Business Studies. She has also written for Success One Business Studies for a number of years.
Dr Daryl Le Cornu BA (Hons) DipEd PhD is currently HSIE Head Teacher at Mount Annan High School. He has taught Legal Studies for 16 years and is also very experienced in teaching other senior humanities courses. Daryl completed a doctorate in 2005 on the intellectual origins of multilateral cooperation and collective security in Britain during World War I. He is an experienced HSC marker for Legal Studies and Modern History. Daryl is also the Education Program Officer for the WCAA (World Citizens Association of Australia) and is a member of ACUNS (Academic Council on the United Nations System).
Tim Kelly BA DipEd DipLaw obtained his BA DipEd from the University of New South Wales in 1984 and completed his Diploma in Law from the Legal Practitioners Admissions Board in 1996. He began teaching Legal Studies in 1993 at St Mary’s Maitland. Since 1998, Tim has been the HSIE Coordinator at St Mary’s in Casino. Tim is also a tutor at Southern Cross University in HSIE Curriculum Specialisation and is a current HSC marker for Legal Studies.
Phil Webster Phil Webster BA DipEd MEd MACE is Head Teacher of Social Scence at Mosman High. He has over 20 years’ experience in HSIE as a teacher of Legal Studies, Society and Culture, and Business Studies, with a particular interest in the changing role of law in society. Phil is passionate about issues of human rights, justice and fairness in a rapidly changing world – a world in which the balance of power between the individual and state is constantly brought into question.
viii
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Acknowledgements
Thanks to my wife, Barbara, my daughter, Ebony, and my son, Zach – a great team! PAUL MILGATE
Thanks to all of my family and friends who put up with me as I wrote my chapters. K ATE DALLY
To the boys at Hells Angels MC – thanks for your assistance with OMCGs. To Katie Wood at Amnesty – huge thanks for your support and research. To Abby, Frankie and Kobe, Daddy is not on the computer tonight! PHIL WEBSTER
I would like to dedicate this book to the ‘Class of 2008’ HSC Legal Studies students at Mount Annan High School. DARYL LE CORNU
To Amanda, Jack and Hannah – thanks, infinity times, always. TIM KELLY
The authors and publisher wish to thank the following sources for permission to reproduce material: Cover: iStockphoto/Anthony Brown. Images: Shutterstock, pp. 1, 4, 5, 9, 10 left & right, 12 right, 13 top, 19, 21, 26, 28, 58, 59, 63, 64, 65, 69, 76, 77, 81, 85 bottom, 86, 90, 92, 96 left & right, 97, 110 left & centre, 113, 118, 119, 129, 130, 131, 134, 135, 141, 148, 149, 150, 153, 154, 158, 163, 168, 169, 170, 172 left & right, 173, 174 top & bottom, 178, 179, 180, 185, 187, 191, 192, 193, 194, 195, 197, 200, 201, 204, 206, 216, 221, 224 top, 226, 234, 235, 250, 251, 258, 272, 284, 285, 294 top left, 304, 305, 306, 307 left & right, 309, 313, 315 top right, 317, 320, 321, 323, 327, 328 left, 330, 332 left & right, 333, 337; iStockphoto/ Anthony Brown, pp. 2, 3; Wikimedia Commons/ Fir0002, p. 7 / Infrogmation, p. 12 top left /Hanhil, p. 50 /David Shankbone, pp. 52, 291 top left /Thalan, p. 73 left /Jeremy, p. 78 /Yann Forget, pp. 93, 176 /Enoch Lau, p. 137 top /Schutz, p. 159 left /lkiwaner, p. 208 / Fanny Schertzer, p. 253 left /Tirin, p. 225 /Francis Tyers, p. 269 top /Simon Wedege Peterson, p. 269 bottom right /Manuel Gonzalez Olaechea y Franco, p. 269 bottom left /Klaus Enslin, p. 288 top right /Dori, p. 288 bottom right, These images are licensed and freely available under the ‘GNU Free Documentation’ License; Wikimedia Commons/ Chris Metcalf, p. 12 bottom left /Wilson Afonso, p. 39 / Patrick Gruban, p. 53 bottom /Chris Johnson, p. 144 /Joi Ito, pp. 171, 311 top /Library of Congress, p. 207 /Robert Scoble, p. 218 /Ruth Elison, p. 243 bottom left, These images are licensed and freely available under the ‘Creative Commons Attribution 2.0’ License; Wikimedia Commons/Public domain, pp. 13 bottom left, 40, 54, 68, 73 centre & right, 84, 101, 137 bottom, 152, 202, 215, 243 bottom right, 244, 268 right, 288 top left, 294 top right; Wikimedia Commons/ TwoWings, p. 13 bottom right /2002 Dustin M Ramsey, p. 44 /Thomas Schoch, p. 139, These images are licensed and freely available under the ‘Creative Commons Attribution ShareAlike 2.5’ License; Dreamstime/ Krystof, pp. 16, 17 /Alfonsodetomas, p. 166 / Silviaantunes, pp. 212, 213 /Yellowcrest, p. 267 /Aspectimages, p. 266; Photolibrary/ Mary Evans Picture Library, p. 20 /North Wind Pictures Archives, p. 324. © State Library of Queensland, Negative Number 16964, p. 32 left; © Gordon H Woodhouse, Unoccupied White Australia, H15362/37, State Library of Victoria, p. 32 right; © John D Chesworth, p. 33; © Ross Scott, Courtesy of the Tasmanian Wilderness
Society, p. 35; © National Library of Australia/ ‘Yes’ for Aborigines, nla.aus-vn3116836-1x-v, p. 37 /Joseph Lycett, Aborigines using fire to hunt kangaroos, nla.pic-an2962715-s20-v, p. 47 top /Lyn McLeavy, Land Council Meeting, Fitzroy Crossing, nla.pic-an23389398, p. 47 bottom /The Australian Constitution, 16211, p. 62 /Captain Cook’s landing at Botany, nla.pic-an7890396-m, p. 100 top; © Ron Tandberg for The Age, p. 42; © Aboriginal Studies Press, AIATSIS and Auslig/ Sinclair, Knight, Merz, 1996, p. 46; Wikimedia Commons/Agencia Brasil. This image is licensed and freely available under the ‘Creative Commons Attribution 2.5 Brazil’ License. p. 53 top; Wikimedia Commons/ Bidgee, pp. 60, 151, 299 /Socrates2008, p. 140 /samh_78, p. 159 right /John Erling Blad, p. 182 /author unknown, p. 214 / Paul 1953, p. 325 top /Angelo Tsirekas, p. 326, These images are licensed and freely available under the ‘Creative Commons Attribution ShareAlike 3.0’ License; Getty Images/ Michael Kelley, p. 66 /Bernd Opitz, p. 156 /Spencer Platt, p. 237 bottom; Corbis/ Epa, Peter Foley, p. 72 /Penny Tweedie, p. 109 /Epa, Mast Irham, p. 142; Wikimedia Commons/Dedda71. This image is licensed and freely available under the ‘Creative Commons Attribution 3.0 Unported’ License. p. 79; Wikimedia Commons/ Richard Johnstone, p. 80 /Timeshift9 p. 132, These images are licensed and freely available under the ‘Creative Commons Attribution ShareAlike 2.0’ License; Wikimedia Commons/ Salim Fadhley. This material is licensed and freely available under the Free Art License at p. 85 top; © ActionAid Austalia (formerly Austcare), p. 91; Newspix/ News Ltd, pp. 98, 104, 259, 295 /Kym Smith, pp. 110 right, 245 /James Knowler, p. 115 /Braden Fastier, p. 157 /Nathan Edwards, p. 237 top left /Sam Rosewarne, p. 256 /Jodie Richter, p. 275 /Craig Borrow, p. 291 top left /Robert McKell, p. 315 bottom /Jeff Darmanin, p. 325 bottom; © National Archives of Australia: A6180, 12/12/73/107, p. 100 bottom /A8598, AK6/5/80/11, p. 103; Fairfax Photos/ The Age, p. 102 / Bruce Miller, p. 291 bottom /AMH/Penny Bradfield, p. 297; AAPImage/ Jonathan Ng, p. 111 /Alan Porritt, p. 164 /Itsuo Inouye, p. 237 top right /AAPImage, pp. 237 bottom left, 239 left /Radar Bali, p. 238 / Anwar Mustafa, p. 239 right /Dita Alangkara, p. 241 /Steve Holland, p. 254 /Torsten Blackwood, p. 255 /Jenny Evans, p. 258 /Aijaz Rahi, pp. 268 left, 277 left /Dave Hunt, p. 278 /Pool/Steven Siewert, p. 286 /Asahi Shimbun, p. 287 /Shannon Morris, p. 308; © Jonas Liebschner/ JL Photography, p. 116; © NSW Rape Crisis Centre, p. 121; © Manly Council, NSW, p. 123; © ACTU, pp. 160, 224 bottom; © Amnesty International Australia, p. 166; © Coca Cola, p. 177 left; © Cadbury, p. 177 right; © Facebook is a registered trademark of Facebook Inc. p. 178 left; © Sheila Smart/Sheila Smart Photography, p. 219; © UN Photo/Ryan Brown, p. 228; © National Security Department, p. 242; Wikimedia Commons/Arnaud Gaillard, pp. 243 top left & right, These images are licensed and freely available under the ‘Creative Commons Attribution ShareAlike 1.0’ License; Reuters/David Gray, p. 262; © Inkcinct Cartoons, p. 277 right; Wikimedia Commons/CC-BY-SA-2.0-DE. This image is licensed and freely available under the ‘Creative Commons Attribution ShareAlike 2.0 Germany’ License. p. 288 bottom left; © F.R.E.E. Australia Party, p. 301; © Esther Dyson via Flickr, at p. 311 bottom; © AFACT, p. 315 top left; © Australian Defence Force, p. 328 right. Text: Cigarette beach ban goes up in smoke in Sydney, The Australian, January 11, 2009 p. 11; © Geoff Earle, NY Post. p. 138; Extract from ABC News ‘Channel Seven guilty in Corby defamation case’ first published by ABC Online, 29 May 2008, is reproduced by permission of the Australian Broadcasting Corporation and ABC Online. (c) 2008 ABC. All rights reserved. p. 142; Matthew Benns, Courtesy of The Sun-Herald p. 155; Belinda Merhab, Courtesy of The Australian, p. 164; Extract from ABC News ‘Controversial bikie laws pass NSW Parliament’ first published by ABC Online, 3 April 2009, is reproduced by permission of the Australian Broadcasting Corporation and ABC Online. (c) 2009 ABC. All rights reserved. p. 299; © Australian Institute of Health and Welfare, p. 322; Andrew West, Courtesy of The Age. p. 329; Extract from ABC News ‘School drugs test a ‘waste of money’’ by Michael Turtle first published by ABC Online, 26 March 2008, is reproduced by permission of the Australian Broadcasting Corporation and ABC Online. (c) 2008 ABC. All rights reserved. p. 331. Every effort has been made to trace and acknowledge copyright. The publisher apologises for any accidental infringement and welcomes information that would redress this situation.
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Introduction
To the student Congratulations on choosing Cambridge Legal
the world and how you understand the concept of
Studies – Preliminary (Second Edition). This edition
achieving justice through the law.
has been completely updated to meet the require-
Cambridge Legal Studies – Preliminary (Second
ments of the 2009 Stage 6 Legal Studies Syllabus
Edition) is a comprehensive resource that intro-
in New South Wales.
duces you to a dynamic and challenging subject.
Legal Studies was first introduced into the NSW Curriculum in 1989. Since then, thousands of
outside the classroom.
students have finished their secondary schooling
You will discover a wealth of material that
better informed citizens, able to think more
introduces you to the Australian legal system, how
critically about the processes and institutions that
the individual interacts with and is affected by
shape their lives on a daily basis.
the law, and gain insight into how the law works
The rights people enjoy within democratic
in practice in a variety of contexts. You will be
societies have at times been eroded by governments
engaged and stimulated by up-to-date case law
when electorates become apathetic about their
and recent legislative developments. Practically,
freedoms and liberties. Legal Studies will allow
updated research and review activities will assist
you to explore the power vested in our democratic
to build your research skills and make sure that
institutions and wielded by our elected leaders. It
you are ready for your exam.
explores issues that will challenge the way you see
x
It brings the law to life for you, both inside and
We wish you luck and success.
C a m b r id g e L e g a l S tu d ie s – Pre limin ary
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Using Cambridge Legal Studies – Preliminary
The Cambridge Legal Studies – Preliminary resource package consists of five components:
s legal research tips and information to help you understand case citations.
1 Student Book
4 Teacher CD-ROM
The Student Book contains all topics in Part I,
The Teacher CD-ROM contains a wide range
Part II (including additional topics under Law
of material to support students and teachers,
Reform in Action), and a range of contemporary
with course, lesson, assessment and homework
high-interest topics in Part III.
preparation.
2 Student CD
5 Student and teacher website
The Student CD can be found at the back of the
The Cambridge Legal Studies website is a free
Student Book. It contains:
resource that presents additional activities, web-
s an electronic version of the Student Book
links, teaching plans and curriculum documents
s two additional chapters for Part III – Migrants
to support students and teachers.
and Aboriginal and Torres Strait Islanders s additional resources for Chapters 8–12 s all Review activities in electronic format.
3 Study Toolkit The Study Toolkit packaged with the Student Book contains a wide range of material to help you succeed in Legal Studies, including: s exam preparation and study tips s additional multiple-choice, short-answer and extended response questions for each part of the course
GUID E T O IC ON S
This icon lets you know that there is some additional information or activities on the Student CD at the back of the book.
This icon lets you know that you will need to access the internet in order to complete an activity or research task.
xi
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Key features of the Student Book
CHAPTER 2
exclusive powers ex parte external affairs power federation indictable offences inquisitorial system jurisdiction legislative powers mediation natural justice obiter dicta opinio juris original jurisdiction
NSW Ombudsman calls for freeze on Taser guns By Belinda Merhab The Australian, 20 November 2008
C a m br i dge L ega l St udie s – P re lim in a r y
The lega l sy stem
o d d l aw In DPP v Darby [2002] NSWSC 1157, the government prosecutor appealed the decision of a magistrate that the actions of a police sniffer dog named Rocky, who put his nose on the defendant’s trouser pocket, constituted an illegal search. The Supreme Court of New South Wales held that Rocky’s action was not a search, but the search that the police officers did carry out (which found prohibited drugs) was legal because they had formed the opinion necessary for its legality – and that opinion resulted from information conveyed by the actions of Rocky.
SIG NIFICA NT CA SES
Gutnick v Dow Jones & Co. Inc [2001] VSC 305 Commonwealth v Tasmania [1983] HCA 21 South Australia v Commonwealth [1942] HCA 14 Murphyores v The Commonwealth [1976] HCA 20 R v Brislan; Ex parte Williams [1935] HCA 78 Osland v R [1998] HCA 75 Roper v Simmons, 543 US 551 (2005)
precedent ratify ratio decidendi referendum residual powers sanction stare decisis summary offences statute law terra nullius treaty ultra vires
C a m br i dge L ega l St udi es – P re lim in a r y
THE NSW Ombudsman has recommended a two-year freeze on further roll-outs of Taser guns, saying police standards for their use are inadequate, and the health risks are unknown. Bruce Barbour told state parliament yesterday that general-duties police, who were issued the stun guns last month, were using Tasers at a higher rate than special operations police, who began using them in 2002. ‘It is clear the number of incidents where Tasers will be used in the future will increase significantly,’ Mr Barbour said. ‘There is already evidence of this. Tasers have been used on people on five occasions in the first two weeks of general-duties use. This compares with only 48 incidents over a fiveyear period’ by special unit officers.’ The Ombudsman’s investigation found officers from special units had predominantly used Tasers from a distance, but in the first two weeks of use by general-duties officers, in four out of the five incidents the Tasers were used in drive-stun mode, where the gun is applied directly to skin or clothing. The use of Tasers, which stun a victim by emitting a 50 000-volt electric shock, have been linked to heart complications and death. Queensland police last week Tasered a 16-year-old girl who had ignored police instructions to move on, because she was waiting with a sick friend for an ambulance to arrive. In another case, a 56-year-old NSW man who had threatened police with a frying pan died 12 days after receiving three Taser shocks. According to his death certificate, the man, who had heart disease, hepatitis C and schizophrenia, died of a heart attack. Mr Barbour was unable to say whether the Taser played a role in the man’s death. NSW Police Commissioner Andrew Scipione said he was only made aware of the man’s death through the Ombudsman’s report on the case.
164
IMPORTA NT LEG ISLAT ION
Commonwealth of Australia Constitution Act 1900 (UK) Australia Act 1986 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth)
C h a p t e r 2 : S o u rc e s o f c o n t e m p o r a r y A u s t r a l i a n l a w
Mr Scipione said there was a training manual for the use of Tasers, and officers had to get an 80 per cent pass rate in a written exam before they were accredited to use the weapon. Mr Scipione said Tasers had been drawn, but not necessarily used, 70 times since last month’s roll-out of the weapons. He said there had not been related injuries to police or citizens. Every Taser use was recorded by an inbuilt camera and was then downloaded and reviewed by Deputy Police Commissioner Dave Owens, he said. But Mr Barbour said general-duties police were inadequately trained and informed on Tasers and the associated dangers. ‘They do not give adequate guidance about situations where they shouldn’t be used,’ the Ombudsman said. ‘It must be remembered that Tasers are not a non-lethal weapon, they are just a less lethal weapon.’ Mr Barbour recommended a two-year review into Taser use, and said the standards that deemed Tasers safe applied only to healthy people.
Statutory bodies
were sent to gaol as a result of the NSW Royal
R EVI EW 7 . 5
Statutory bodies are authorities created by
Commission). However, it has been argued
1 Explain the process
statute for a public purpose. The following
that the inquiry into Aboriginal deaths in
of internal review of a
statutory bodies can investigate complaints
custody has failed to produce significant
government agency’s
improvements in the conditions leading to
decision. What are the
and disputes of certain types.
these deaths.
potential problems with
A NTI-D ISCRIMINAT ION BOA RD OF
internal review?
NSW ( A D B)
IND EPEND ENT COMMISSION
The Anti-Discrimination Board of NSW
A G A INST CORRU PTION ( ICA C)
is part of the NSW Attorney General’s
While the Ombudsman has the power to
Department and was established under
investigate complaints made by the public,
the Anti-Discrimination Act 1977 (NSW). Its
the
role is to promote principles and policies
Corruption (ICAC) has greater power. The
of equal opportunity throughout NSW,
ICAC Act 1988 (NSW) created the ICAC as an
to ensure that people are protected from
independent statutory body to investigate
discrimination on the basis of characteristics
alleged corruption in government. ICAC
such as disability, age, race and sex. It
attempts to protect the interests of the pub-
advises the government and also provides
lic, prevent breaches of public trust, and
an inquiry service to inform people about
influence the behaviour of public officials.
Independent
Commission
2 Explain the function of
Against
their rights and responsibilities under
Some examples of corrupt behaviour
anti-discrimination laws. The Board will
include bribery, fraud and theft. ICAC has
investigate and conciliate complaints when
the power to investigate the activities of pri-
action is necessary. It has the power to
vate citizens if such behaviour affects the
issue fines for behaviour that violates anti-
proper administration of public offices. ICAC has the authority to ask the police
discrimination laws.
service to assist in its investigations, and
Figure 7.13 The use of Taser guns by the police is a controversial issue.
freedom of information legislation. 3 Describe the role administrative and other tribunals play in settling legal disputes. Give an example. 4 Outline the ways in which people’s privacy is protected in NSW. 5 What is judicial review? How does it differ from review of the merits of a decision? 6 Outline the role of an ombudsman. How is an ombudsman limited in solving disputes?
COMMISSIONS OF INQU IRY
is therefore able to search for and seize
7 Explain the importance of
Commissions of inquiry are set up to
evidence where it sees fit. It does not have
natural justice as the state
investigate serious matters at both state
the power to prosecute offenders (that is the
attempts to enforce laws.
and federal level. They are not judicial
job of the Director of Public Prosecutions).
proceedings, but fact-finding exercises.
At the end of an investigation it can report
Royal Commissions are commissions of
to parliament that corrupt behaviour has
R ES EA R C H 7 . 2
inquiry with particularly strong powers
occurred, who committed it, and what
1 Visit the ADB website:
with respect to calling witnesses. In the
further action should be taken. If a citizen
http://www.lawlink.nsw.
past, such inquiries have investigated
feels that he or she has been wrongfully
gov.au/ADB
issues such as Aboriginal deaths in custody
accused of corruption, he or she may seek
(Commonwealth, 1987) and corruption in
judicial review in the New South Wales
the NSW police service (NSW, 1995).
Supreme Court.
2 Choose ‘Resources and links’ from the left-hand menu and follow the link to ‘Legal cases from Equal Time’.
Commissions of inquiry do not have the
In 2005, ICAC investigated a claim that a
power to prosecute offenders. At the end
private tutoring firm was assisting English
of an inquiry, the commission will produce
Extension II students with work that was
evaluate the effectiveness
a
recommendations,
ultimately submitted as part of their HSC
of the ADB in bringing
which may include recommending criminal
assessment. Although ICAC did not ‘prove’
about just outcomes. You
prosecution of individuals. The government
that students had been assisted, it raised
should include a case that
may decide to act on the commission’s rec-
serious concerns about assessment tasks in
has been dismissed by the
ommendations: a number of police officers
the HSC that are of a ‘take-home’ nature.
ADB.
report
containing
17
The individual and the law
c h a p te r o b j e cti v e s
Media clip A number of current media articles are provided to help you understand how the law operates in real-world situations.
xii
adversarial system appeal appellate jurisdiction bicameral bill committal hearing common law concurrent powers customary law defamation delegated legislation domestic law equity
m e dia c lip
16
Activities – Review and Research Throughout each chapter you will find a number of different activities. Review activities are designed to help you test your knowledge of key concepts and skills. Research activities are designed to extend your knowledge by researching relevant cases or issues using source material.
re le v a n t la w In this chapter, students will: s identify and apply legal concepts and terminology s describe the key features and operation of the Australian and international legal systems s discuss the effectiveness of the legal system in dealing with relevant issues s explain the relationship between the legal system and society s describe the role of the law in conflict resolution and its ability to respond to and initiate change s locate, select and organise legal information from a variety of sources s communicate legal information by using wellstructured responses.
k e y te r m s/v o c a b u l a ry
Chapter openers Each chapter of Cambridge Legal Studies – Preliminary begins with a chapter opener that contains: s #HAPTEROBJECTIVES s +EYTERMS s 2ELEVANTLAWINCLUDING important legislation and significant cases) s /DDLAWIN#HAPTERSn
Sources of contemporary Australian law
3 Discuss two cases and
Chapter 7 – Resolving disputes
165
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content have been raised in Australia more
the US and particularly concerned with preserving
recently. The idea of ‘clean feed’ legislation origi-
have a contract. As May Donoghue
freedom of speech in the context of the internet.
nated during the Howard federal government and
our capacity to safeguard our sensitive personal
did not actually buy the ginger
John Perry Barlow, mentioned above, was a
involved the establishment of a filtering scheme
information. The Privacy Act has worked pretty well to
beer and thus had no contractual
founding member of the EFF and the CDA was the
that would be imposed on all Internet Service
date, but it now needs a host of refinements to help
relationship with the manufacturer,
stimulus for his ‘Declaration of the Independence
Providers (ISPs).
us navigate the Information Superhighway. These days,
in normal circumstances she would
of Cyberspace’.
mobile
phones,
digital
cameras,
suppliers with whom they didn’t
social networking websites – all of which challenge
Following a federal court’s ruling that the CDA
2007 continued to consider the proposal. The
violated the First Amendment, the US government
$70 million plan would block web pages listed in
a landmark decision and formed
appealed to the Supreme Court. A broad coalition
a ‘blacklist’ maintained by ACMA. It was argued
the basis of the tort of negligence
of individuals and groups had joined the American
that not only would this prevent internet users
worldwide, not only because of
Protecting children
Civil Liberties Union (ACLU) as plaintiffs in the
from seeing unwanted and inappropriate material,
not have been able to sue.
information privacy touches almost every aspect of our daily lives, including our medical records and health
Figure 8.13 Does digitalv security exist? Donoghue Stevenson became
status, our finances creditworthiness, personal Figure 3.4 A decomposing snailand found in ginger alethe formed the basis of litigaton. details collected and stored on a multiplicity of public and corporate databases, and even the ability to control
The Labor government that was elected in
display by andMay distribution of from our own images. This case was the an appeal getting into ginger beer
the judgment relating to non-
original case, including not only the EFF, but also
but would combat child pornography itself. Two
One of thecontractual most significant concerns duty of care, butabout also cyber-
organisations and trade unions of editors and
potential types of filter were canvassed. Either
August 2008), www.alrc.gov.au/media/2008/mr1108.html space is the need oftoLord protect children, not only original decision. The defendant’s s an efficient system of inspection because Atkin’s ‘neighbour
publishers, high school journalism teachers, and
all pornographic material would be blocked, or
appeal had succeeded; Mrs
of the bottles before they from were inappropriate principle’:content and online predators,
Human Rights Watch. The ‘Reno’ in the title of
an ‘opt-in’ scheme would allow users to continue
Donoghue then appealed to the
but from serious criminal offenders who victimise sold to the consumer, including
the case was Janet Reno, Attorney General of the
receiving ‘adult material’.
David Weisbrot, (Media release, Donoghue, the plaintiff in the ALRC President bottles, and ALRC, 11
REVIEW 8.4
children. Child pornography a is, legal and moral ‘[T]here must be, is and some House of Lords. clear bottles that would make it 1 Mrs HowDonoghue are cyberbullying, cyberstalking and cyber-racism problem that general goes beyond the legality of images or conception of relations was bought easier to inspect. different fromby their counterparts in the world? text on the internet or other media. giving rise to a duty of care, of some ginger beer a friend in The physical court held that a 2 Should against these acts bemanufacturer specifically drafted In the United laws drafted to protect whichStates, the particular cases found the town oflaws Paisley, Scotland. is underto a legal duty cyberspace, or are existing laws adequate? children from inappropriate be in the books are butmaterial instancesmust ... Therelate gingertobeer was in a dark to the consumer to take reasonable 3 List somewhich non-legal ways that could bethat used drafted in such way asyou notare to to violate the right Thearule that love your glass bottle prevented care thetoarticle will not cause against cyber-racism and online to freedom of expression contained the First neighbour becomes, in law,inyou Mrsprotect Donoghue fromcyberbullying, seeing the injury to health. predators. the following agents in your answer: Amendment.must Another difficulty that if a law is too not injure yourisneighbour; contents. SomeConsider ginger beer Lord Atkin, one of the presiding
United States from 1993 to 2001.
The mandatory proposal was much more
The Supreme Court, affirming the lower court’s
restrictive than the voluntary ISP filter schemes
decision, held that the indecency provisions of the
operating in some European countries, which
CDA were an unconstitutional restriction of free
block only child pornography. One version of the
speech. The court found that the terms ‘offensive’
scheme in Australia would include a wider range
and ‘indecent’ were vague, and the provisions of
of material, some inappropriate for children but
the CDA overly broad, concluding that the CDA
not necessarily involving pornographic or violent
was not sufficiently narrowly tailored to the goal
content. ‘Social themes’ upsetting to children
broad in the and scope what should be Who prohibited, theof lawyer’s question: judges, referred to the precedent
of protecting minors from potentially harmful
could include divorce and euthanasia.
it can tooneighbour? much – including that is my receives content a case of Heaven v Pender (1883) 11 prohibit s olderto teenagers (e.g.ofsiblings, friends or which mentors of is unlikely torestricted be accessed children or to have reply.byYou must take proceeded pour the rest the QBD 503, established that to do with thecare victimisation of children. reasonable to avoid acts gingeryounger beer intochildren) Mrs Donoghue’s ‘under certain circumstances,anything one s and software This and other issues will be you further or omissions which can examined glass it was companies then that a man may owe a duty to another,
material. Moreover, there is no effective way to
parents wasspoured into a glass for her, s teachers which she drank.and Herschools friend then
s internetsnail service providers later in the discussion the proposed ‘clean reasonablyofforesee would be likelyfeed’ decomposing came out of even though there is no contract 4 How might ‘digital tattoo’ posethem’. problems legislation in to Australia. injure your neighbour. Who, the bottle. This someone’s made her feel between He went further forill,him her she in the List some hypothetical quite andorlater alsofuture? suffered than the narrow decision in Heaven, scenarios, then outline ways can prevent this dicta of Reno from severe gastroenteritis. Mrs that you however, citing obiter the
then, in law, is my neighbour? The
determine the age of an internet user.
passed a law known the Communications to have themas in contemplation care to anyone in a position where
Act of Two when provisions as 1996 being(CDA). so affected I am of the Mrs Donoghue alleged that failing to use ‘care and skill inDecency his For further information on digital CDAofprohibited the ‘knowing’ directing my mind transmission to the acts on the Stevenson had failed in his duty of conduct … would cause danger safety issues, see the Australian internet of obscene or indecent communior omissions that aresexual called in care to provide: injury’. government’s Net Alert website: cations or images to people under 18 years of age. question.’ s a system of working his business Until Donoghue v Stevenson, www.netalert.gov.au/ which would prevent snails individuals had no rights againstThis was seen by many as a violation of the
Increasingly, they are using less public methods
in that a user will seldom encounter content ‘by
such as peer-to-peer networks, which allow single
accident’. The internet should therefore be subject
computers to communicate with each other;
to less regulation.
encrypted networks, or smaller networks using codes that only the members know; or other systems that prevent public access. Consequently, blocking websites is not an effective means of
For full text of the decision in Reno
v American Civil Liberties Union, 521 US 844 (1997) see http:// caselaw.lp.findlaw.com/cgi-bin/ getcase.pl?court=us&navby=case &vol=000&invol=96-511
principle of freedom of expression. One of the
stopping the spread of child pornography. Some internet service providers dislike the proposal because it is too easily bypassed by users, and because enforcement would be too onerous. Another objection is the risk that the filter would block material that has nothing to do with the type of content that the law aims to fight.
248
s Non-legal responses include the establishment of anti-terrorism media campaigns and the establishment of memorials to the victims of the bombings. s The Bali bombings revived debate about the death penalty. s The Bali bombings saw the introduction of Australian anti-terrorism legislation and the strengthening of the enforcement agencies responsible for homeland security. s This legislation has come under criticism by those who believe it jeopardises civil liberties and key legal rights.
Which of the following is NOT true of terrorism? A It can be utilised by fundamentalist religious groups or political groups. B It can be constituted by a threat of violence directed at a population in order to induce a government to change its policies. C It is intended to cause death, not fear. D It was used prior to 2001. Jemaah Islamiyah was: A a peaceful Islamic organisation B a foreign terrorist organisation that established a branch in Indonesia C under suspicion from the CIA for having links with Al Qaeda well before the Bali bombings D the name of the Indonesian counterterrorism force Which of the following alleged suspects responsible for the Bali bombings ended up walking free? A Iman Samudra B Abu Bakar Bashir C Amrozi D Ali Ghufron
Which of the following was not a result of Australian–Indonesian cooperation since the Bali bombings? A Australian police involved in the identification of victims of the Bali bombings B the establishment of the Australian Federal Police C the establishment of the Jakarta Regional Cooperation Team D the establishment of the Jakarta Centre for Law Enforcement Cooperation Which of the following types of provision was contained in the anti-terrorism legislation passed by the Commonwealth after the Bali bombings? A detention of persons suspected of terrorism offences for the purpose of investigation B detention of illegal immigrants from countries known to harbour terrorists C immunity of anti-terrorism legislation from judicial review D immunity of any Commonwealth employee from prosecution
Cam b r i d g e L e g al S t u d i e s – P rel i m i na r y
Ch ap te r su m m a r y t a sk s
C h a p t e r 8 – T h e in d ivid u a l a n d t e ch n o lo g y
To pi c re vi e w
Mu lt i pl e -ch o i ce qu e s tio n s
Ch ap te r su m m a r y
b rbi d i mi m i na r yr y Cam r igdeg eL eLgeal g alS tSutduideise s– –P rel P rel i na 16840 Cam
s The attacks on the World Trade Center and the Pentagon on 11 September 2001 (9/11) mark the beginning of terrorism as a global phenomenon. s The Bali bombings was carried out by Indonesian Islamic extremists on 12 October 2002. Bombs were exploded at Paddy’s Bar and the Sari Club, both popular with Australian tourists. s While no group took immediate responsibility for the bombing, the radical Islamic association, Jemaah Islamiyah, was suspected. s Amrozi, Imam Samudra and Mukhlas stood trial for the Bali bombings and were found guilty. They were sentenced to death by firing squad and executed in November 2008.
Glossary terms All of the key terms in each CHAPTERANDMORE ARE defined for you in the margin and in the glossary at the end of the book. These definitions are designed to help you learn and revise key terms from the syllabus.
It has been pointed out that criminals that are accessible on the World Wide Web.
cation differs significantly from broadcast media,
le ga l l i n k s
Inof1996, due by to my public pressure, US Congress act that I oughtthe reasonably extended the notion of a duty
manufacturer of the ginger beer.
le ga l lin k s
(the respondent), who was the
World Wide Web a system of documents that are accessible on the internet and that are connected to each other through hyperlinks on which the user can click to be taken to another location. The World Wide Web is not the same thing as the internet.
distributing child pornography seldom use sites
The court’s view was that online communi-
v American Liberties answer seems Civil to be – persons who from happening with respect to your online judge, activities. Union, 521 US 844 are so closely and(1997) directly affected Donoghue sued David Stevenson dissenting Brett MR, who
Internet Service Providers (ISPs) companies that offer customers access to the internet
Outline the situation regarding global terrorism before the Bali bombings. What is the ‘war on terror’? What was known about Jemaah Islamiyah before the Bali bombings? Explain the connection between Hambali and the Bali bombings. Who was Abu Bakar Bashir and why was he a suspect? Why are good relations between Australia and Indonesia important from the Australian government’s point of view?
Who were the main suspects arrested for the Bali bombings? What was controversial about the trial of Abu Bakar Bashir? Why was the Australian government’s policy towards the death penalty controversial? What key changes in anti-terrorism legislation have occurred in Australia since the Bali
181
bombings?
Chapter review At the end of each chapter, you will find a summary of the chapter, multiple-choice questions and chapter tasks. In Part III you will also find extended response activities.
EXTEND ED RESPONSE
Discuss the anti-terror legislation, with reference to the arguments for and against a bill of rights. Outline how the Australian and Indonesian governments have cooperated since the Bali bombings. Outline the key stages in the investigation of the Bali bombings. Contrast the ‘war on terror’ and the ‘rule of law’ approaches taken in the fight against terrorism. Describe the Australian government’s policy towards the death penalty.
Legal links In addition to the activities, there are suggested links to internet resources and activities in each chapter. These will help you extend your knowledge and stay upto-date with changes in the legal system.
Us i n g C a m b rid g e L e g al Stud ie s – P re lim inary
Similar concerns about offensive and obscene
(EFF), an international non-profit group based in
Internet,
e-commerce, sophisticated surveillance devices and
The indiv idua l a nd the la w
A clean feed?
sation called the Electronic Frontier Foundation
the
L a w i n p r a ct i ce
ca se sp a ce
groups that held this view was an advocacy organi-
Although the federal Privacy Act is only 20 years old, it
Donoghue v was Stevenson (1932) introduced beforeAC the562 advent of supercomputers,
Case space A number of relevant legal cases appear throughout the text. Each case allows you to apply your knowledge of the legal system to realworld situations. Many cases are followed by a range of questions to help you test what you’ve learnt.
Marking criteria for the extended response questions can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your response.
C h a p t e r 1 1 – T h e B a li b o m b in g s
249
xiii
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Glossary of key words
Syllabus outcomes, objectives, performance bands
meaning in the Higher School Certificate docu-
and examination questions have key words that
ments. Using this glossary will help students and
state what students are expected to be able to do.
teachers understand what is expected in responses
A glossary of key words has been developed to
to examinations and assessment tasks.
help provide a common language and consistent
Account account for: state reasons for, report on; give an account of; narrate a series of events or transactions Analyse identify components and the relationship between them; draw out and relate implications Apply use, utilise, employ in a particular situation Appreciate MAKEAJUDGMENTABOUTTHEVALUE of Assess MAKEAJUDGMENTOFVALUE QUALITY outcomes, results or size Calculate ascertain or determine from given facts, figures or information Clarify make clear or plain Classify arrange or include in classes or categories Compare show how things are similar or different Construct make; build; put together items or arguments Contrast show how things are different or opposite
xiv
Critically (analyse/evaluate) add a degree or level of accuracy, depth, knowledge and understanding, logic, questioning, REmECTIONANDQUALITYTOANALYSE evaluate) Deduce draw conclusions Define state meaning and identify essential qualities Demonstrate show by example Describe provide characteristics and features Discuss identify issues and provide points FORANDORAGAINST Distinguish recognise, note or indicate as being distinct or different from; note differences between Evaluate MAKEAJUDGMENTBASEDONCRITERIA determine the value of Examine inquire into Explain relate cause and effect; make the relationships between things EVIDENTPROVIDEWHYANDORHOW Extract CHOOSERELEVANTANDORAPPROPRIATE details
Identify recognise and name Interpret draw meaning from Investigate plan, inquire into and draw conclusions about Justify support an argument or conclusion Outline sketch in general terms; indicate the main features of Predict suggest what may happen based on available information Propose PUTFORWARDFOREXAMPLEAPOINTOF view, idea, argument, suggestion) for consideration or action Recall present remembered ideas, facts or experiences Recommend provide reasons in favour Recount retell a series of events Summarise concisely express the relevant details Synthesise put together various elements to make a whole
Extrapolate infer from what is known
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The legal system The legal system 40% of course time
1 Basic legal concepts s Meaning of law s Customs, rules and law s Values and ethics s #HARACTERISTICSOFJUSTLAWS
The leg al s y s tem
PART I
s .ATUREOFJUSTICEEQUALITY fairness and access s Procedural fairness s Rule of law s Anarchy and tyranny
2 Sources of contemporary Australian law s Aboriginal and Torres Strait s Common law Islander customary law s Statute law s International law s The Constitution
3 Classification of law s 0UBLICLAWEGCRIMINAL law, administrative law, constitutional law) s 0RIVATELAWCIVILLAWEGCONTRACT law, tort law, property law)
s Criminal and civil court procedures including legal personnel s Common and civil law systems
4 Law reform s Conditions that give rise to law REFORMEGCHANGINGSOCIAL VALUES NEWCONCEPTSOFJUSTICE new technology) s !GENCIESOFREFORMEG law reform commissions,
parliamentary committees, media) s -ECHANISMSOFREFORMEG courts, parliaments, United Nations, intergovernmental organisations)
5 Law reform in action Native title Law reform and sport
Law reform and sexual assault
1
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CHAPTER 1
k e y t e r ms/ v ocab ul ary
c hap ter o b j e cti ve s
Basic legal concepts
2
In this chapter, students will: s identify and apply legal concepts and terminology s identify the changing nature of law s describe the interrelationship between customs, rules and laws s explain the relationship between the legal system and society
s DISCUSSTHENATUREOFJUSTICEINTERMSOFEQUALITY fairness and access s discuss the concept of procedural fairness and the rule of law s discuss the concepts of anarchy and tyranny s communicate legal information by using wellstructured responses.
anarchy customary law customs equality ethics fairness JUSTICE law legal system NATURALJUSTICE procedural fairness rule of law rules tyranny values
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The leg al s y s tem
odd l a w In New South Wales under the Crimes Act 1900 S ITISILLEGALTOTAKEMONEYTOHELPSOMEONE lNDTHEIRMISSINGDOG3ECTIONOFTHE!CT states the following: Whosoever corruptly takes any money or reward, directly or indirectly, under pretence, or upon account, of aiding any person to recover any dog which has been stolen, or which is in the possession of any person other than its owner, shall be liable to imprisonment for one year.
#HA PTER2ESPONSIVENESSOFTHELEGA L S YS TEMTOMI GRANTS
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The mea n i n g of law The law is a dynamic thing – a complex mecha-
about, we also need to understand why we live in
nism, evolving from hundreds of years of tradition,
a society.
culture and values.
A society is a group of human beings who are
In general terms, the law can be defined as
linked by mutual interests, relationships, shared
a set of enforceable rules of conduct which set
institutions and a common culture. In earliest
down guidelines for relationships between people
history, people usually banded together for basic
and organisations in a society. The law provides
survival and would agree to live by rules that
methods for ensuring the impartial treatment
protected their lives and their property.
RE VIE W 1.1 1 List the areas of law
of people, and outlines punishments for
This tradition has carried on throughout history.
those who do not follow the agreed rules
As groups of people formed societies, and cultural
of conduct.
groups within these societies, they established and
Despite the fact that it often seems to
enforced rules about the conduct of relationships.
be playing catch-up, the law attempts to
Laws today are imposed by the administrative
2 What other areas of law
keep pace with our ever-changing society.
institutions that govern a society; they cover all
can you think of? List at
To understand how these rules (known
members of society and there are consequences
related to the images provided below.
least five.
in modern society as ‘the law’) came
that follow if they are breached.
law a set of rules imposed on all members of a community which are officially recognised, binding and enforceable by persons or organisations such ASTHEPOLICEANDOR courts values principles, standards, or qualities considered worthwhile or desirable within a society rules regulations or principles governing procedure or controlling conduct
Figure 1.1 Laws regulate a wide variety of situations within society.
4
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The State Library of NSW provides
easy-to-read information about the
information on the history of the legal
Australian legal system:
system in Australia: www.sl.nsw.gov.au/
www.whyshouldi.com.au
discover_collections/history_ nation/justice/index.html
Cu s toms, ru les a n d law Customs
Rules
Put simply, customs are established patterns of
If you were to look in a dictionary or on the
behaviour among people in a society or group.
internet, you would find many definitions of the
Customs vary depending on the culture, religion
word ‘rules’. Generally, rules refer to prescribed
and history of a group of people, society or country.
directions for conduct in certain situations. Rules
For example, in Australia it is customary for men
are generally made by groups and only affect
to shake hands when greeting a friend, whereas in
people within those groups. These rules often
Europe this greeting may be in the form of a kiss
vary between groups and are not enforceable by
on each cheek.
the state. For example, there are rules for playing
Where a custom is followed by most of the
games, behaviour in the classroom, and so on.
population over time, it may become part of
If these rules are broken, there is some form of
the laws of that society. Because of differences
punishment attached, enforce-
between societies, not all customs become law.
able by those involved in the
Customary law consists of established patterns
making of the rules (e.g. sus-
of behaviour that are accepted within a particular
pension, detention). Rules can
social setting. These principles and procedures
also be altered by these people
develop through general usage according to the
in order to deal with changes in
customs of a people, nation-state or group of
situations. This usually happens
nation-states. Customs arose to deal with problems
after consultation with the group
in the most harmonious ways. Over time, these
members involved.
customs become accepted as legal requirements.
In a legal sense, rules form the
Three areas in which customary law has influenced
basis of laws. However, rules can
the Australian legal system are:
be changed quite quickly with
s Aboriginal and Torres Strait Islander customary
the agreement of those involved.
law
customary law principles and procedures that have developed according to the customs of a people or nation, or groups of nations, and are treated as obligatory nation-state a politically independent country
Laws, as you will discover, are
s English customary law
much more difficult to change
s international customary law.
and punishment is not always a
In many societies, most customary law is
customs collective habits or traditions that have developed in a society over a long period of time
The leg al s y s tem
legal links
The NSW Bar Association provides
simple process.
never written down, as is the case with Indigenous Australian customary law. In other societies, customary law eventually is recorded and transferred into written law in formal legal systems.
Figure 1.2 There may not be a law about wearing school uniform, but there is often a rule.
#HA PTERn"AS I CL EGAL CONCEPTS
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R EVIEW 1.2 1 Complete the lists below by adding three additional examples of rules.
and they might incur a fine. The consequences of breaking rules are comparatively minor, however inconsiderate it may be to break them. Laws allow and prohibit a whole variety of
H OUS EH OL D R UL ES
a Always inform your parents when you are going out. b
activities, from where rubbish should be placed to how we should treat fellow human beings. Failure to follow these regulations incurs penalties ranging from a fine to imprisonment. Laws have certain characteristics that make
c
them different from rules:
d
1 Laws are binding on the whole community. S C H OOL R UL ES
This means that they apply to all members of
a Students must always wear correct school
society.
uniform on school grounds. b
2 Laws can be enforced. This means that penalties apply if a law is broken. 3 Laws are officially recognised. This means that
c
governments and courts recognise laws and
d
enforce them. S OC IAL ET IQUET T E
a Always cover your mouth and nose when sneezing in public.
4 Laws are accessible (or discoverable). This means that people can find out which law applies to a particular situation.
b
5 Laws relate to public interest. This means that
c
laws exist for things that concern the whole of society, and that interest is considered
d
to outweigh the costs or drawbacks of the government’s involvement in enforcing them. 6 Laws reflect rights and duties. This means
Law
that everyone in society has responsibilities to
The law, as we know it, is made up of the formal
everyone has the right to be treated in the same
rules of society. These ‘legal rules’ have been
way by others.
agreed upon by the group and govern their
In Australia today, the laws of society are
behaviour and activities.
ethics RULESORSTANDARDS governing the conduct of a person or the members of a PROFESSION AMAJOR branch of philosophy, which investigates the nature of values and of right and wrong conduct
6
others, such as the duty to drive safely, and that
mainly decided on by elected government officials
Laws are different from rules. For example,
at local, state or federal government levels. Judges
at the shopping centre, a sign on the escalator
also have the power to make laws in certain cases
requests that you stand to the left and do not take
when they set a precedent. This will be discussed
strollers on it. These rules exist for the safety and
in greater detail in the following chapters.
comfort of shoppers. However, they are just rules,
It is expected by society that the law will look
and that is why you will still see people standing
after all members of the group, and therefore that
on the right and taking their prams on the
any laws made will be fair, just and equitable. It is
escalator. There are also signs telling you that you
also expected that they will reflect traditional and
can’t smoke in shopping centres. This is a law and
current ethics and values. Although this represents
if someone did ‘light up’, they would be asked to
the ideal situation, what is actually attainable may
leave the shopping centre by security or the police,
be another matter.
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Laws
Rules
s to be obeyed by all citizens of a society s made by a law-making body s enforced through the courts s consequences of a breach results in a prescribed sanction imposed by the courts
s to be obeyed by specific individuals or groups s made by individuals or groups s enforced by leaders of a group s consequences of a breach at the discretion of the leader of a group
The leg al s y s tem
Table 1.1 Differences between laws and rules
Relationship between customs, rules and laws As people have joined together in communities,
s Over time, these rules became formalised laws,
a relationship has developed between rules, laws
known in society as ‘the law’.
and customs: s Whenever people have lived together in groups, they have developed rules to govern their behaviour and thus maintain the smooth running of activities. s These rules were based on the traditions, customs and values of the group. s These rules have penalties attached if members of the group fail to follow them. s Groups usually put someone, or a small group, in charge to enforce these rules and the associated penalties. In modern times, this became the government.
Figure 1.3 The House of Representatives Chamber in Parliament House, Canberra
Va l u es a n d e t h ic s We all have values by which we try to live. Living
legal system. Two classic examples (with varying
according to our ethics means that we do things
degrees of success) are:
that we consider to be morally right.
s The Mardi Gras (Sydney) – an internationally
Lawmakers try to incorporate these values
recognised annual event celebrating same-
and ethics into laws. However, it is very difficult
sex relationships. It originally started off as a
to make rules, and thus laws, about everyone’s
protest march against the treatment of same-
values, especially as there are often groups in
sex couples by the legal system and the lack of
society that have different standards of what is
protection afforded to their relationships.
morally right or wrong. For this reason laws will
s The Mardi Grass (Nimbin, northern NSW) – an
only cover those ethical values that are common
annual event that attempts to influence the gov-
to all. Over the past three decades many groups
ernment to relax the laws relating to the use and
have voiced their values and ethics in a public
cultivation of marijuana. It includes events like
manner in an attempt to influence the law and the
the Hemp Olympics and the Dope Pickers Ball.
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Ch a ra c te ri s t ic s o f j u s t l aws justice the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved
The concept of justice involves the fair and
majority, while ensuring that the minority has the
impartial treatment of all persons, especially
opportunity to put their point of view. A just law is
under the law. In simple terms, justice can be
one that allows everyone to receive fair treatment
seen as the continued effort to do the right thing
and outcomes, and ensures that human rights are
by everyone. When it comes to making laws in
recognised and respected. This is not always an
a democratic society, justice involves consulting
easy thing to do, as you will learn throughout the
the people and carrying out the decisions of the
Legal Studies course.
T h e n a t u r e o f j u s t i ce legal system the system of courts, prosecutors and police in a country
8
The system of courts, prosecutors and police
for them. For example, children under 10 years
in a country is often called the legal system. It
of age cannot be held legally accountable for their
is the task of the legal system to ensure that all
actions and therefore cannot be convicted of a
equality the state or quality of being equal, that is, of having the same rights or status
citizens have equal access to the law and that
criminal offence. This presumption is known as
the law provides equality, fairness and justice to
doli incapax. In the case of 10–14-year-olds, the
all members of society. Equality, fairness and
court will make an assessment as to whether the
justice are central concepts which allow us to
child can tell the difference between right and
fairness free from bias, DISHONESTY ORINJUSTICE a concept commonly related to everyday activities
distinguish good law from bad law. However, if all
wrong, and this will influence the way in which
citizens do not have full and equal access to the
the matter is handled.
doli incapax a Latin term meaning ‘incapable of wrong’; the presumption that ACHILDUNDERYEARS of age cannot be held legally responsible for his or her actions and cannot be guilty of a criminal or civil offence
providing justifiable and appropriate outcomes.
legal system, equality, fairness and justice are just empty concepts. It is only by combining all of these principles that a legal system will be seen to be
Fairness Fairness and justice are usually associated with each other. The difference is that the term
Equality
‘fairness’ applies to everyday life, whereas ‘justice’
Equality means that all people in a society are treat-
different opinions about what is fair.
has more legal connotations. People may have
ed in the same way with respect to political, social
For example, suppose one team wins a sport
and civil rights and opportunities; no one enjoys
competition because all of its players, randomly
unfair advantage or suffers unfair disadvantage.
selected, happen to be taller than those on the
Although we would like to think that equality
other team. If the rules of the competition do
applies to everyone, our society tolerates many
not specify that both teams must have players of
types of equality and many forms of inequality. For
the same size, it may seem unfair to the losing
example, depending on the situation, a 10-year-old
team, but there is no ‘fact of the matter’. If Ann
child will be treated differently from a 17-year-old
places a bet on the team she knows has the taller
teenager or a 40-year-old adult.
players, and none of the other people who placed
While the law strives for equality, it also takes
bets knows anything about the teams or how tall
into account people’s different capacities, such as
the players are, Ann’s winning the bet may also
maturity, recognises that some people are more
be regarded as unfair – as a result of her having
vulnerable than others, and provides protection
knowledge the others lacked.
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In other words, even if it is sometimes possible for an opinion about what is fair to be justified or mistaken, there is no single social mechanism for deciding what is fair or ensuring fairness. When rules are made, it is expected that they
The leg al s y s tem
will be fair to those covered by them. In the same way, when a rule is translated into law, it is expected that it will be fair to all members of society. Justice is more specific than fairness, as the term is applied to situations covered by the law, which tries to ensure that everyone has the same opportunities.
Access The ultimate goal of the law is to protect the rights of all citizens in a society; however, the legal system can only fulfil this goal if all people have
Figure 1.4 Historically, Indigenous Australians have had limited access to the legal system in Australia.
equal access to the agencies and institutions of the law. Access refers to the ability to obtain or make
However, in reality, the legal system is not
use of something. The concept of justice suggests
accessible to everybody equally. Financially disad-
that everyone who is covered by a legal system and
vantaged people, disabled people, people from
its laws should have equal access to that system.
non-English
This includes ensuring that citizens are aware of
Aboriginal and Torres Strait Islander peoples, and
the laws that affect them, and understand their
those who are institutionalised may experience
rights and responsibilities under these laws.
particular difficulties.
speaking
backgrounds,
access the right or opportunity to make use of something
women,
Procedu ra l fa i rness a n d t he p ri nc ip les o f n a t u ra l j u s t ice Procedural fairness refers to the idea that there
The assertion that ‘justice should not only
must be fairness in the processes that resolve
be done, but should be seen to be done’ comes
disputes. It is closely linked to the concept of
from the English case R v Sussex Justices; Ex parte
natural justice; the two terms are often used
McCarthy [1924] 1 KB 256. It was discovered that in
interchangeably.
a criminal trial in which McCarthy was convicted of
Natural justice refers to the fact that everyone
dangerous driving, a clerk to the magistrates was
should be treated fairly in legal situations. There are
also a solicitor who had represented the person
two main principles of natural justice. These are:
suing McCarthy in a separate civil case arising
s the right to be heard – this includes the right to
out of the accident. Although the magistrates did
a fair hearing
not consult the clerk for his opinion, and the clerk
s the right to have a decision made by an unbiased
gave them no advice on the matter, McCarthy’s
decision-maker – even an appearance of bias is
conviction was overturned on the basis of the
enough to constitute a breach of natural justice.
possibility of bias.
procedural fairness / natural justice the body of principles used to ensure the FAIRNESSANDJUSTICEOF the decision-making procedures of courts; in Australia it generally refers to the right to present your case, the right to freedom from bias by decisionmakers, and the right to a decision based on logically relevant evidence
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T h e r u l e o f l aw rule of law the principle that no one is above the law; the most important application of the rule of law is that governmental authority is exercised in accordance with written, publicly disclosed laws that are adopted and enforced in accordance with established procedural STEPSDUEPROCESS
The principle of the rule of law is that no one
what each individual believes is important has the
is above the law, including those who make the
same importance to the larger group.
Obvious breaches of the rule of law occur when
People will not follow rules if they do not
sanction a penalty imposed on those who break the law, usually in the form of a fine or punishment
officials make favourable decisions for relatives
agree with them or feel that the rules have no
and friends but apply the law fully for everyone
connection to them. This is especially so if the
else.
penalty attached to the rule is seen as inadequate.
law. This means that the groups and individuals
Laws also function to protect all members of
who are involved in the legal system, such as the
society. They tell society what actions are and
legislators and judges who make, administer and
are not permitted. Laws apply sanctions to those
interpret the laws, the police who enforce the law
found guilty of a crime, and may act as a deterrent
and the lawyers who represent and advise people
to those who might otherwise commit a crime.
on the law, are all answerable to the same laws
Laws enable people to resolve disputes, as they
as every other citizen. Thus the rule of law means
empower the police force and the courts to enforce
that everyone is subject to the same laws.
and administer the law.
For example, think about the penalties attached to
Why do people obey the law?
riding your bike or skateboard in areas where it is
In general terms, people within a society like to
laws, others do not, as they do not consider the
have rules and laws because they create order.
penalty (e.g. a fine or demerit points) to be enough
Laws help each person to feel a sense of security
of a deterrent.
not permitted, or talking on a mobile phone when driving. While many people obey these rules and
– the law is clear about what is expected of them
As would be expected, however, laws against
as citizens and what they can expect from others.
more serious offences carry a range of stricter
As the law is based on customs, it also helps to
penalties, which are intended to make people
reinforce the values of most members of society.
think seriously about the consequences before
In principle, the law embodies the concept that
breaking the law.
Figure 1.5 People sometimes disobey laws if they do not consider the penalty to be sufficiently harsh.
10
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what reasons do members of society obey the law? 2 Define the following basic legal notions. You can choose to use words, pictures or cartoons to define them: a custom b rules c law d fairness e equality f justice g values h ethics 3 Write an explanation of why you chose to define the terms above using the format you did.
REVIEW 1.4 1 In your own words, describe what the article to the right is about. 2 Explain why the council has not actually prosecuted anyone. 3 Why do you think people may not obey this law? 4 Does society need a stronger type of legislation? Write two paragraphs, one arguing in favour of the legislation, the other arguing against it.
Cigarette beach ban goes up in smoke in Sydney The Sunday Telegraph *ANUARY Councils responsible for Sydney’s popular beaches have not fined one smoker, four years after the bans were introduced. Smokers at Bondi, Australia’s busiest beach, are ignoring Waverley Council signs that clearly prohibit the habit. They are also lighting up without fear of fines on 7AVERLEYSOTHERMAJORBEACHES "RONTEAND4AMARAMA although anti-smoking regulations have been in effect SINCE$ECEMBER Warringah Council, responsible for northern beaches including Collaroy and Dee Why, is also yet to issue a fine. Nor has Manly Council. A Waverley spokeswoman said the smoking ban was more about education and self-regulation than fines. ‘Rangers and lifeguards tell smokers nicely to move away from the sand,’ she said. ‘Most people are happy to go to the promenade when told they cannot smoke on the beach. It’s not about money, it’s more about the environment.’ A Manly Council spokeswoman said smokers were constantly warned against lighting up through public broadcast over microphones at Manly, North Steyne and Queenscliff beaches. The only council to have utilised its power to fine is -OSMAN WHICHLASTYEARlNEDTHREEPEOPLEFOR smoking on the foreshore reserve at Balmoral beach. Action on Smoking and Health Australia CEO Anne *ONESSAIDCOUNCILS@HAVEABLINDSPOTONTHISISSUE ‘It does make a mockery of laws if there is no intention to ENFORCETHEM -S*ONESSAID ‘Waverley needs to be more proactive given that Bondi is such a popular beach.’ Clean Up Australia lists cigarette butts as one of the most common items littering our beaches. ‘It can be a health issue when beaches are crowded with families and small children can put cigarette butts in their mouths,’ Ms *ONESSAID Randwick Council is considering introducing smoking lNESAFTER YEAR OLD!DAM&AHY -AJEEDSTARTEDA community campaign to ban the habit on Coogee beach last year.
The leg al s y s tem
1 Why do we need laws? For
m e d i a cl i p
REVIEW 1.3
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A n a rc hy a n d t y ra n ny anarchy the absence of laws and government
The rules and laws that have evolved for different societies are based on the customs, values and ethics that are part of these traditions. Most people want and accept rules as a necessary part of everyday life due to the belief that all people should be treated equally and with fairness. Rules are needed to ensure that our behaviour is regulated to meet the common expectations of society. The absence of laws, the inability to enforce laws or the unfair and unequal application of laws can result in states of anarchy or tyranny.
Anarchy When people believe that the law has let them down in some way, they may declare, ‘We live in a state of anarchy!’ What exactly do they mean by this? The word ‘anarchy’ comes from the Greek word anarchia, which means ‘without a ruler’. Anarchy, therefore, is a term used to describe a state of chaos and disorder resulting from the absence of rules and laws. A state of anarchy may break out during a revolution or after a natural disaster, because the law enforcement agencies no longer exist or are unable to enforce the laws of a society. Violence and widespread looting are two early indicators that a society or group is on the verge of anarchy. In August 2005, in the aftermath of Hurricane Katrina in New Orleans, USA, violence and looting became widespread, with residents forced to protect themselves and their properties from looters and criminals. In order to avoid a full-blown state of anarchy, thousands of National Guard and federal troops were sent to secure the area and enforce the law. While the majority of people believe that an absence of rules and laws leads to a disorganised, chaotic society, certain philosophers, theorists and anarchist movements believe that anarchy does not imply chaos, but rather a ruler-free society with voluntary social harmony.
Figure 1.6 !FTER(URRICANE+ATRINAIN PARTSOF.EW Orleans slipped into a brief state of anarchy.
12
Figure 1.7 The ‘Circle-A’ is the most widely recognised symbol for anarchy.
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The leg al s y s tem Figure 1.8 Modern-day anarchist groups protest against the dominant power of governments and large corporations.
RES EARCH 1.1 Prepare a report on anarchy and modern-day anarchist organisations. In your report include the following:
Tyranny If anarchy is the absence of laws and law enforcement agencies, then tyranny is the opposite. By definition, a tyrant is a single leader who has
s a definition
unlimited power over the people in a country or
s a history
state. Generally, tyrannical power involves severe
s information on two anarchist organisations
punishment for any infringements of the law.
and their beliefs s modern-day anarchists and their activities. To help you with your research, the following websites may provide a starting point.
tyranny rule by a single leader holding absolute power in a nation-state
Some modern-day examples of tyrannical power in action include Saddam Hussein’s rule in Iraq prior to his arrest in 2003 and Robert Mugabe’s control of power in Zimbabwe.
Alternatively, you may prefer to choose your own group to research. s www.anarchy.org.au (web portal for anarchist groups in Australia) s go.to/classwar (anarchist group based in Auckland, New Zealand) s www.wombles.org.uk (UK-based activists) s flag.blackened.net/af/links.html (UK Anarchist Federation website has an enormous list of links to anarchist groups worldwide) These groups often protest at: s G8 summits s European Union meetings s World Trade Organization meetings.
Figure 1.9 Zimbabwe tyrant Robert Mugabe and an example of a protest against him.
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Ch a p te r s u m m a ry M ul ti p l e- c hoi ce q ues ti o n s 14
s The law of a country has developed from the rules of the dominant community. s These rules are based on the customs, values and ethics of that community. s Rules and laws have different characteristics. s The term for the absence of government is ‘anarchy’.
1 Which of these statements about the difference between a rule and a law is true? a Rules are not binding on the whole of the community. b Rules do not involve rights and responsibilities. c Rules are not enforceable. d Rules have nothing to do with ethics. 2 What is anarchy? a constant violence and disorder b the absence of law c wearing black clothes to break the rules d rebellion against the government 3 What are ethics? a allowing people to be different b a mix of equality and fairness c the principles that help us make decisions about right and wrong behaviour d different people’s perceptions of the law 4 A police officer charges a man for crossing the road against the lights, but does not book a woman doing the same thing. Why is this UNJUST a The police officer should concentrate on serious crimes. b Studies show that women are better at crossing roads.
s The law is based on the notions of fairness, EQUALITYANDJUSTICE s The law covers all members of society and has penalties attached for infringements of the law. s People follow the law because it provides them with protection against wrongful behaviour.
c The police officer has not treated all pedestrians equally. d You should be allowed to cross the road wherever you want. 5 What is the purpose of the law? a to divide power among all of the different groups in society b to provide stability for the ruling government c to maintain order in society d to make people do things that no one wants to do
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The leg al s y s tem
Ch a p te r s u m m a ry ta s k s
1 Describe the difference between anarchy and the law. 2 Explain how anarchy and a structured system of law are not compatible. 3 Account for the relationship between rules, laws and custom.
4 Compare and contrast ‘rules’ and ‘laws’. 5 What is the relationship between fairness, EQUALITYANDJUSTICE 6 )SLAWNECESSARY *USTIFYYOURANSWER 7 Why do people have different perceptions about the law?
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CHAPTER 2
ke y t e r m s/ v o c a b ul ar y
c hap ter ob j e cti ve s
Sources of contemporary Australian law
16
In this chapter, students will: s identify and apply legal concepts and terminology s describe the key features and operation of the Australian and international legal systems s discuss the effectiveness of the legal system in dealing with relevant issues s explain the relationship between the legal system and society s describe the role of the law in conflict resolution and its ability to respond to and initiate change s locate, select and organise legal information from a variety of sources s communicate legal information by using wellstructured responses.
adversarial system appeal APPELLATEJURISDICTION bicameral bill committal hearing common law concurrent powers customary law defamation delegated legislation domestic law equity
exclusive powers ex parte external affairs power federation indictable offences inquisitorial system JURISDICTION legislative powers mediation NATURALJUSTICE obiter dicta OPINIOJURIS ORIGINALJURISDICTION
precedent ratify ratio decidendi referendum residual powers sanction stare decisis summary offences statute law terra nullius treaty ultra vires
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IM PORTA N T L EGIS L AT ION
Commonwealth of Australia Constitution Act 1900 5+ Australia Act 1986 #TH Administrative Decisions (Judicial Review) Act 1977 #TH SIGNIFIC AN T C AS ES
Gutnick v Dow Jones & Co. Inc;=63# Commonwealth v Tasmania;=(#! South Australia v Commonwealth;=(#! Murphyores v The Commonwealth;= (#! R v Brislan; Ex parte Williams;=(#! Osland v R ;=(#! Roper v Simmons 53
T he leg al s y s tem
rel ev ant l aw
odd l a w In DPP v Darby ;=.373# THE government prosecutor appealed the decision of a magistrate that the actions of a police sniffer dog named Rocky, who put his nose on the defendant’s trouser pocket, constituted an illegal search. The Supreme Court of New South Wales held that Rocky’s action was not a search, but the search that the police officers did carry OUTWHICHFOUNDPROHIBITEDDRUGS WASLEGAL because they had formed the opinion necessary for its legality – and that opinion resulted from information conveyed by the actions of Rocky.
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Au s t ra lia’s lega l herita ge common law law made by courts; historically, law common to England
Legal processes and practices used in Australia
An impartial judge (and sometimes a jury) will
today are based on the model developed in England.
listen to the evidence presented by both parties and
When the British came to Australia in 1788, they
make a decision as to which side has proved their
statute law law made by parliament
brought with them the law that applied in Britain,
case, and thus disproved the other side’s case.
adversarial system a system of resolving legal conflicts, used in common law countries such as England and Australia, that relies on the skill of representatives for EACHSIDEEGDEFENSE and prosecution lawyers) who present their cases to an impartial decisionmaker inquisitorial system a legal system where the court or a part of the court EGTHEJUDGE IS actively involved in conducting the trial and determining what questions to ask; used in some countries with civil legal systems as opposed to common law systems
known as common law. Contemporary Australian law has evolved from both common law and statute law. Common law refers to laws created in court –
The inquisitorial system
that is, decisions made by judges. Statute law refers
In an inquisitorial system, the court is actively
to laws made by parliament. These concepts are
involved in determining the way in which the
discussed in further detail below.
competing claims are presented. It is different from the adversarial system, where the role of the
The adversarial system of trial
court is to act as an impartial referee.
The English system of law has heavily influenced
Europe, as well as Japan and some other countries.
Australian law and practice, including the way
In this system, called the civil law system, a judge
in which court cases are conducted. As a result,
or group of judges have the task of investigating
Australia uses the adversarial system as part of
the case before them.
The inquisitorial system derives from the Roman and Napoleonic codes. It is found in
both criminal and civil court proceedings. The word
Indonesia uses an inquisitorial system for
‘adversary’ means ‘opponent’. In a trial the two
criminal trials. This means that the judges will
sides of the case try to prove their version of the
conduct an inquiry into the truth of what occurred:
facts and disprove the version of the other side. The
that is, the facts behind the legal issues in dispute.
defendant in a criminal trial does not have to prove
They are able to admit evidence that might not
anything, as he or she is assumed to be innocent
be admitted in an Australian court. Judges are
until proven guilty. However, most people accused
empowered to decide which witnesses will be
of a crime will retain the services of a legal team to
called, and could even call for outside testimony
show how the prosecution’s case is flawed.
that had not been requested by either side.
Co m m o n l aw courts of equity historically, courts whose decisions were more discretionary and based on moral principles, and which served as an antidote to the inflexibility of the common law
The term ‘common law’ has many different uses,
including Australia, New Zealand, Canada and
as you would find if you were to put the term into
the USA.
a search engine on the internet. Common law in Australia today includes elements of the following: s court-made law (as opposed to laws made by parliament) s law developed by the courts of common law, as distinct from the courts of equity
18
Development of the common law The British legal system itself developed from a number of sources. In Anglo-Saxon England, for
s the system of court-based law used in the United
example, questions about rights and obligations
Kingdom and many of its former colonies,
were decided on the basis of local custom and
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The leg al s y s tem Figure 2.1 Australian common law is based on the English system. Shown here are the Houses of Parliament in London.
disputes were resolved by local courts. After the
said to have committed it (the defendant) had to
Normans invaded England in the 11th century,
swear an oath. The defendant might have the help
they began a system of travelling judges who
of ‘oath-helpers’ – people willing to swear to his
applied a common set of laws to all areas of
innocence. If the court found the defendant’s oath
England. Petitions from people who felt that the
believable, he or she could simply walk away. If,
local courts had been unjust were dealt with on
however, the plaintiff could bring witnesses who
the premise that similar cases should be treated
would swear that the defendant had committed
in a similar way. The decisions made by the judges
the act, the defendant might be required to parti-
provided the precedents for later cases, and the
cipate in a ‘trial by ordeal’.
laws they applied became the basis of the British legal system.
Before the ordeal, the defendant had to fast for three days and attend a special mass. He was then
This system was the one brought over to
given a painful task to complete or to bear, such
Australia with the First Fleet, but gradually
as carrying a red-hot iron bar a certain distance in
Australia has developed its own legal system
his bare hands, retrieving a stone from a cauldron
based on its statute law and common law. Many
of boiling water, putting his hand into a flame, or
British legal principles have been retained in the
being thrown into a river or pond. If the defendant
Australian system. These include the principles of
completed the task without injury or death, if the
natural justice.
wound healed within a prescribed period, or if the
From about the sixth to the 11th century, the law was enforced by local administrative bodies.
defendant sank, he or she was considered innocent and set free; if not, execution usually followed.
The king’s appointees, the church, and local
Trial by ordeal continued after the Norman
landlords all had a role in court resolution of legal
conquest, though there were new requirements
matters. Crimes were treated as wrongs for which
imposed by the church, for example that no one
the offender had to compensate the victim.
could be made to undergo an ordeal without the
If the court accepted a case, both the person
bishop’s permission. It was eventually condemned
against whom the illegal act was allegedly
by the church in 1215 and abolished by royal
committed (the plaintiff) and the person who was
decree in 1219.
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to the king claiming that the common law courts had made unjust decisions. It became the job of the Chancellor to deal with these petitions. For many years, the Chancellor was a priest, as well as a judge. Chancellors did not base their judgments on precedent and form; instead, they were influenced by Christian principles. This body of law, which developed to deal with the injustices that had crept into the common law and was set up to hear these petitions, became known as equity. As a court of equity, the Court of Chancery looked at the features of each case to decide what Figure 2.2 An example of a water ordeal: the guilty would float, the innocent sink.
was fair or just in the particular circumstances. The moral principles on which equitable decisions were based were called the rules (or maxims) of
equity the body of law that supplements the common law and CORRECTSINJUSTICESBY JUDGINGEACHCASEON its merits and applying principles of fairness
In order to consolidate his hold on the country,
equity, and are still used today.
William the Conqueror sent judges (or justices)
The systems of common law and equity co-
around the country with three main tasks to
existed, but not always peacefully. In the early
carry out:
17th century, a dispute between the Chancellor
1 administer a common set of laws throughout the
and the Chief Justice of the King’s Bench was
country
resolved through the personal intervention of
2 report on any threats to the throne
the king, James I, who called a conference of
3 assess the wealth of the country so that tax
judges. They concluded that in the case of conflict
could be levied.
between the common law and equity, equity
When the next ruler, Henry II, came to the
should prevail. As a result, rules of equity always
throne in 1154, there was a well-established
override common law.
practice of sending royal justices throughout the
There are equitable remedies for wrongs not
countryside to listen to disputes, work out solutions
recognised by the common law. Some of these
and apply punishments, and ensure that common
remedies are non-financial: for example, the court
rulings were made overall. These judges also had
may order someone to do what he or she promised
authority to make decisions when they heard new
but then failed to do, or may set aside an unfair
cases. In this way, a set of uniform laws developed
contract.
throughout England. Thus common law as we know
In the 1870s, the British parliament passed
it today has evolved from judicial decisions that
legislation merging the courts of common law
were based in tradition, custom and precedent.
and the courts of equity, allowing judges to apply the rules of common law or equity (or both) in a
Development of equity
particular case. The Australian colonies followed suit with similar legislation.
The procedure for bringing a case before the court was rigidly formal. In Anglo-Saxon times, if a party failed to follow the prescribed steps, he could lose his case. Even later, the common law would hold
20
The doctrine of precedent
that a person was bound by a contract, even if he
As stated above, the common law, or case law, is
had made a mistake or been tricked into signing it.
the law developed by judges when deciding cases.
By the 15th century, people were bringing petitions
Not only are there rules about the presentation of
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decidendi of a higher court will set a binding
must resolve disputes on the basis of decisions
precedent on lower courts;
made in similar cases. A judgment that is followed
s obiter dicta – other remarks made by the
is called a precedent, and it provides the authority
judge regarding the conduct of the trial, for
for the legal principle contained in the decision.
example about the credibility of a witness.
The doctrine of precedent is also known as stare
These remarks do not form part of the decision
decisis – Latin for ‘the decision stands’.
and thus do not set a precedent.
The purpose of precedent is to ensure that people are treated fairly, and that the law develops
WH EN PRE C E DENT DO E S NO T H AVE TO
in a consistent and coherent fashion. It means that
B E FO L L O WED
old cases retain authority and their decisions can
If the facts or relevant points of law are significantly
be used as the basis for decisions in modern court
different from a previous case, the case may be
cases. Thus the doctrine of precedent works to
distinguished from the earlier one and its ratio
limit a judge’s ability to be creative when it comes
decidendi does not have to be followed.
to making a decision.
When a higher court upholds an appeal of a lower court’s decision, the decision of the lower
Making and following precedent
courts is reversed.
When there has been no previous decision to
A court may refuse to follow a decision of
provide guidance for deciding a case, a court must
another court which is at a lower or equal level in
use principles of the existing common law and
the hierarchy. This refusal is called overruling the
statute law to make its decision. The judges will also
decision of the lower court.
pay attention to social developments and common sense. Their new decision creates a precedent. Another way in which precedents are created
B I NDI NG P REC EDE NT
is a dispute about the meaning or application of a
Lower courts are bound to follow decisions of
section of an Act, or about the meaning of a word,
superior courts, regardless of whether the judge
a court may have to resolve the question. For
believes a decision of the higher court is correct.
example, if a statute requires that the local council
This is known as ‘binding
must approve the removal of trees from any land,
precedent’. For example,
a developer might not agree that the term ‘trees’
the
includes dead trees. Judicial interpretation of the
Local Courts and District
legislation might be needed to determine whether
Court must follow the deci-
council approval must be sought for the removal of
sions of the New South
dead trees just as for live ones.
Wales Supreme Court. All
New
South
ratio decidendi ,ATIN THELEGAL REASONFORAJUDGES decision obiter dicta ,ATIN COMMENTS FROMAJUDGEINACASE that are not directly relevant to the case, and therefore not legally binding SINGULAROBITER dictum)
Wales
While courts are not bound to follow other
state and federal courts in
courts’ interpretations of statutes, they are usually
Australia are bound by the
expected to do so. This is because if a court decision
decisions of the High Court
has not resulted in parliament changing the
of Australia. Only the ratio
wording of legislation, it suggests that parliament
decidendi of the superior
is satisfied with the court’s interpretation.
court is binding. The High Court is not
usually is made up of two parts:
strictly bound by its own
s the ratio decidendi – the legal reason why
decisions, though it usually
a judge came to a particular decision. A ratio
stare decisis a Latin term meaning ‘the decision stands’; the doctrine that a decision must be followed by all lower courts
Rules of precedent
is in the interpretation of legislation. Where there
When a judge gives a decision in a case, it
precedent AJUDGMENTTHATIS authority for a legal principle, and that serves to provide guidance for deciding cases that have similar facts
follows them.
Figure 2.3 4HEJUDGEACTSASAN ‘umpire’ in a court case.
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The leg al s y s tem
evidence and the running of the case, but judges
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2/9/09 8:32:33 PM
ca s e s p a ce
jurisdiction the powers of a court, depending on its geographic area, the type of matters that can be decided, and the type of remedies that can be sought
PER S UAS IVE PR EC ED E NT
Decisions made in other Australian states or
Superior courts do not have to follow decisions
other common law countries, such as the United
made in lower courts. They may, however, use them
States or the United Kingdom, may influence an
to help make a decision. This is called ‘persuasive
Australian judgment. The higher the court in its
precedent’.Persuasive precedent may also include
own jurisdiction’s hierarchy, the more persuasive
obiter dicta of a judge in a higher court.
the precedent will be.
The law of defamation and the internet Gutnick v Dow Jones & Co. Inc. [2001] VSC 305 In this case, the plaintiff argued
in New York, USA, the plaintiff
that he had been defamed over
successfully argued that he had
cases to look at the internet as
the internet. The defendant,
been defamed in his own city
a source of defamation. It set
Dow Jones, publishes an online
because more than 300 people
a precedent for defamation
news magazine. An article
had accessed the report in
claims being brought across
in that magazine discussed
Melbourne. The Supreme Court
jurisdictional boundaries, and
the business dealings of the
of Victoria held that publication
sparked international interest.
plaintiff, a prominent Melbourne
occurs when an article is
The decision shows that
businessman, and alleged
downloaded, and that a plaintiff
internet communication is no
that he was involved in money
can bring proceedings in any
different from other forms of
laundering and fraud. Even
jurisdiction where the offending
communication, and is subject
though the article originated
statements can be accessed.
to the same laws.
This was one of the first legal
defamation the act of making statements or suggestions that harm someone’s reputation in the community
Cou r t h ie ra rc hy : j u ri sdic t io n of s t ate a n d fede ra l cou r t s
appeal an application to have a higher court reconsider a lower court’s decision, on the basis of an error of law
Australia has two levels of law: state and federal.
22
State and territory courts
As a result, there are separate state and federal jurisdictions, each of which has its own court
The state court system in New South Wales
structure.
operates under the following hierarchy:
All courts have the power to hear a case for
1 Lower courts
the first time. Some courts can also hear appeals
2 Intermediate courts
from lower courts. This means they can reconsider
3 Superior courts.
the decision of a lower court, where the losing
The Australian Capital Territory does not have
party believes there has been an error in the
the intermediate level, but is otherwise similar.
lower court’s legal reasoning. Figure 2.4 shows the
Each court has its own jurisdiction, or area over
structure of state courts in New South Wales, and
which it has authority. Minor matters are dealt with
federal courts in Australia. The arrows show the
lower in the court hierarchy, whereas the higher
specific courts that can hear appeals from each of
courts are reserved for more serious matters and
the lower courts.
appeals from the lower courts.
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HIGH COURT OF AUSTRALIA
Federal superior courts
Supreme Court of the ACT
&EDERAL#OURTOF!USTRALIA
Non-family law matters
Supreme Court of NSW
Federal specialist courts
State intermediate courts
&AMILY#OURTOF!USTRALIA
District Court of NSW
The leg al s y s tem
Federal superior courts
Family law matters
Federal lower courts
Territory lower courts
State lower courts
&EDERAL-AGISTRATES Court of Australia
Magistrates’ Court of the ACT
Local Court of NSW
Coroner’s Court of the ACT
Coroner’s Court of NSW
Children’s Court of the ACT
Children’s Court of NSW Land and Environment Court of NSW
Figure 2.4 3TATETERRITORYANDFEDERALCOURTHIERARCHY
In criminal cases, minor offences such as loitering and obstructing traffic are called summary
Territory, the court that has this role is called the Magistrates’ Court.
offences – these are dealt with in the lower courts.
Most criminal matters are heard in the Local
More serious criminal offences, such as assault
or Magistrates’ Court, as only very serious crimes
and murder, are called indictable offences –
are referred to the District or Supreme Courts. In
these are dealt with in the higher courts.
the case of indictable offences, the magistrate will listen to an outline of the evidence to determine
Lower courts
whether the prosecution has a strong enough case to be able to try the defendant in the District Court
LOCAL COURT AND MAGISTRATES’ COURT
or Supreme Court. This preliminary hearing is
In New South Wales, the Local Court deals with
called a ‘committal hearing’.
minor criminal matters and minor civil disputes.
The Local Court in New South Wales has
In this court a magistrate will hear and decide
jurisdiction to deal with the following areas:
the case, and will set the punishment for criminal
s minor criminal and summary offences
offences. The Local Court is also known as the
s civil matters with a monetary value of $5000
Magistrates’ Court, and in the Australian Capital
summary offences criminal offences that can be dealt with by a SINGLEJUDGEWITHOUT AJURYANDDONOT require a preliminary hearing indictable offences serious criminal offences that require ANINDICTMENTA formal, written charge) and a preliminary hearing; they are typically tried before a JUDGEANDJURYANDARE SUBJECTTOAGREATER penalty
to $60 000
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committal hearings inquiries held in the Local or Magistrates’ Court to determine whether there is enough evidence against the defendant to warrant a trial in a HIGHERCOURTTHISIS called establishing a prima facie case) coronial inquests investigations into deaths that have occurred in unusual circumstances, held in the Coroner’s Court and overseen by a magistrate called the Coroner larceny taking another person’s property with intent to permanently deprive the owner of the property; also known as stealing appellate jurisdiction the ability or power of a court to hear appeals of the decisions of lower courts and to REJECT AFlRMORMODIFY those decisions
s committal hearings
serious charges like manslaughter, sexual assault
s a limited range of family law matters, such as
and large-scale drug importation. The only
property settlements and residence orders for
charges with which the District Court cannot deal
children. In this area, the Local Court has federal
are murder, treason, and piracy, which must be
jurisdiction and in these matters is essentially
dealt with by the Supreme Court.
part of the Federal Court hierarchy. The Magistrates’ Court of the Australian Capital Territory has similar jurisdiction, although it can
A judge and sometimes a jury will hear cases tried in a District Court. The District Court deals with criminal offences
hear and decide civil matters with a maximum
such as:
monetary value of $50 000.
s manslaughter, malicious wounding, and danger-
C OR ON ER ’ S C OURT
s assaults
In New South Wales and in the Australian Capital
s sexual assaults
Territory, the role of the Coroner’s Court is to
s offences
ous driving
relating
to
property,
including
ensure that unexplained or suspicious deaths
robbery, breaking and entering, larceny and
(or suspected deaths), fires and explosions are
embezzlement
properly investigated. If necessary, coronial inquests are carried out and cases are handed to a higher court for trial.
s importing, supplying or possessing prohibited drugs s offences involving fraud, including passing valueless cheques, obtaining money by decep-
C H IL DR EN ’ S C OURT
tion, and forgery.
In New South Wales and in the Australian Capital
The District Court has an unlimited jurisdiction
Territory, the Children’s Court deals with civil
in claims for damages for personal injuries arising
matters related to the care and protection of
out of a motor vehicle accident. It also handles
children and young people. It also deals with
civil cases where the amount claimed is between
criminal cases involving persons under the age
$60 000 and $750 000. If both parties agree, the
of 18 at the time of the offence, or (in New South
court can deal with cases where larger amounts
Wales) under the age of 21 when charged with a
are involved. It also has appellate jurisdiction.
crime they committed while under the age of 18. L AN D AN D EN VIR ONM ENT C O U RT
corporations law legislation that regulates corporations and the securities and futures industry in Australia; it is administered by the Australian Securities and Investments #OMMISSION!3)#
24
Superior courts
The Land and Environment Court is a specialist court
TH E SU P REM E C O U RT
responsible for interpreting and enforcing environ-
The Supreme Court is the highest court in the
mental law in the state of New South Wales. It has a
state or territory hierarchy. It deals with the most
wide jurisdiction and deals with matters related to
serious criminal matters and civil cases involving
environmental planning (e.g. zoning of park lands),
large sums of money (there are no monetary limits
environmental offences (e.g. illegal polluting or
on its civil jurisdiction). It also deals with appeals
dumping) and appeals to local council rulings.
from the lower courts in that state or territory. The Supreme Court has criminal jurisdiction
Intermediate courts
over the most serious indictable offences such as murder and manslaughter, attempted murder,
THE DISTRICT COURT OF NEW SOUTH WALES
kidnapping, major conspiracy and drug-related
The District Court of New South Wales deals with
charges, and Commonwealth prosecutions for
more serious criminal matters. These include
serious breaches of the corporations law. All
everything from charges of larceny to more
cases are heard before a judge and jury.
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be dissolved, with jurisdiction for family law
monetary damages in the Supreme Court. It
matters returning to the Family Court and for all
hears matters on claims for damages for personal
other matters returning to the Federal Court. The
injury, breach of contract, professional negligence,
reasons given for the restructure were to reduce
possession of land, and defamation. Most civil
the financial costs of operating an additional court,
matters are dealt with by a judge alone, although a
conflict over resources, and individuals’ confusion
jury is used in some circumstances.
about which court has the appropriate jurisdiction
The Supreme Court also hears appeals. The
to hear their particular case. Some of the savings
Court of Appeal is the highest court in each state
expected to result from the restructure would be
and territory, for both civil and criminal matters.
used to provide non-adversarial dispute resolution
Three judges hear most appeals, but some are
services in the area of family law.
T he leg al s y s tem
In civil matters, there is no upper limit to
heard by two, and, in special cases, they may be heard by more than three. If the judges cannot
The Federal Court of Australia
agree, the majority view prevails. To appeal to
The Federal Court of Australia was established by
the High Court from the Court of Appeal, special
an Act of Parliament in 1976. It assumed some of
permission must be granted by the High Court.
the jurisdiction formerly exercised by the High Court of Australia and all of the jurisdiction of two
Federal courts
courts that had dealt with industrial matters and
The federal court system has a hierarchy in much
by federal law (except for family law matters),
the same way as the state court system does.
as well as some summary criminal offences.
These include:
The Federal Court’s position in the federal court
bankruptcy. It deals with civil disputes governed
hierarchy is equivalent to that of the Supreme
The Federal Magistrates’ Court of Australia
Courts in the states and territories. In relation to
The Federal Magistrates’ Court of Australia was
to the Family Court of Australia, and superior to
established by the Commonwealth Parliament
the Federal Magistrates’ Court.
the other courts in the federal hierarchy, it is equal
towards the end of 1999 and conducted its first sittings in July 2000.
The Family Court of Australia
The Federal Magistrates’ Court was established
The Family Court of Australia is a superior federal
to relieve some of the case load of the Federal
court which deals with the most complex family
and Family Courts and reduce the cost and time
law matters. It was established by the Australian
required to deal with more minor federal matters.
Parliament in 1975. Its main function is to rule on
The jurisdiction of the Federal Magistrates’
cases related to specialised areas in family law,
Court includes family law and child support,
such as divorce, parenting orders, the division of
administrative law, bankruptcy, human rights,
property and spousal maintenance. In its appellate
consumer protection and trade practices, privacy,
jurisdiction, it can hear appeals from a decision of a
migration, copyright, and industrial law. It does
federal magistrate or a single Family Court judge.
not deal with criminal matters. It shares its original jurisdiction with the Family Court of Australia and
The High Court of Australia
the Federal Court of Australia; matters can be
The High Court of Australia is the highest court in
transferred between these courts, depending on
the Australian judicial system. It was established
the complexity of the legal issues.
in 1901 under section 71 of the Australian Consti-
In November 2008, the federal government
tution. The High Court deals with appeals from
decided that the Federal Magistrates’ Court would
the Federal Court of Australia, the Family Court
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Figure 2.5 The High Court of Australia is located in Canberra.
interpretation of the Australian Constitution and
Courts. It also deals with cases concerning the
the constitutional validity of laws.
l eg al l i nks
of Australia, and the state and territory Supreme
R EVI EW 2 . 1 Legal Access Services is a site that
1 Why do we need courts?
was set up to provide legal advice
2 Explain the meaning of ‘court hierarchy’.
to ordinary Australians. It provides
3 Which court is the highest in Australia?
information on the Australian legal
4 Outline the types of matters that are
system. The following pages provide information on the court system: www.legalaccess.com.au/content. aspx?Id=AuInfJudicial Lawlink, hosted by the NSW
heard in the local court. Who hears these matters? 5 Indicate the types of cases that are dealt with in the District Court of New South Wales. Who decides these cases?
Attorney General’s Office, has
6 Describe the role of the Supreme Court.
information about the courts of NSW
7 Explain the importance of the High Court.
and Australia: www.lawlink.nsw.gov.
8 In which court would the following matters
au/Lawlink/Corporate/ll_corporate.
most likely be heard?
nsf/pages/LL_courts_tribunals_index
a a murder trial
The ACT government provides information on that territory’s courts and tribunals: www.courts.act.gov.au/ The Australian Government
b an appeal from the NSW Supreme Court c a hearing for the offence of using offensive language in public d an investigation into a suspicious death
Attorney-General’s website has
e an armed robbery trial
information about the federal legal
f the preliminary hearing for a kidnapping
system and courts: www.ag.gov.au/www/agd/agd. nsf/Page/Legalsystemand justice_TheCourts
case g a civil dispute between business partners involving $100 million h a case dealing with an aspect of the Australian Constitution
26
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PARLIAMENT OF AUSTRALIA
The leg al s y s tem
4HE1UEENREPRESENTEDBYTHE Governor-General)
Government members of parliament Executive members of parliament Non-government members of parliament
House of Representatives
Senate
Figure 2.6 Parliament of Australia
St a t u te l aw Statute law is the law made by parliament. It is
and the territories, all state parliaments and the
also known as ‘legislation’ or ‘Acts of Parliament’.
federal parliament are bicameral. This means
In Australia, any parliament has the power to
that they have two houses, an upper house and
make statute law. This means that state, territory
a lower house. The Australian Capital Territory’s
and federal governments all have the right to
parliament is unicameral: it only has a lower
make laws. The Australian Constitution sets out
house, called the Legislative Assembly. In New
the powers of the state and federal parliaments
South Wales, the lower house is known as the
with respect to making law.
Legislative Assembly and the upper house is called
bicameral containing two chambers or houses of parliament
the Legislative Council.
The role and structure of parliament
Senate (the upper house) and the House of Repre-
A parliament is a body of elected representatives.
formed by the political party that has the majority
It debates proposed legislation, passes or rejects
of seats in the lower house. Sometimes parties
it, and amends legislation. Apart from Queensland
will unite to form a government (such as the
In federal parliament, the two houses are the sentatives (the lower house). The government is
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bill a drafted law that has not yet been passed by parliament delegated legislation laws made by authorities other than parliament, who are delegated the power to do this by an Act of Parliament
Liberal–National Coalition). The prime minister is
The Executive Council is made up of the
the leader of the government. The political party or
Governor or Governor-General and selected mini-
parties who have the remaining seats in the lower
sters. It is the body that enables legislation to be
house form the opposition. Ministers are those
put into operation. The British monarchy still plays
members of the government who have a special
a role in parliament in Australia.
responsibility for particular departments, e.g.
The Queen must assent to laws. She is repre-
Minister for Education, Minister for the Environ-
sented in Australia by the Governor-General at
ment. Some or all of the ministers form the Cabinet.
federal level and governors at the state level.
Cabinet makes decisions on policy and laws to be
legal links
drafted for consideration by parliament.
The legislative process Passing legislation
For information on the
One of the most important functions of parlia ment
Commonwealth Parliament
is the passing of laws. Most laws are introduced by
go to www.aph.gov.au
the party that holds government. A proposed new law is known as a bill. The making of a law can be time-consuming and difficult. The process is open
Figure 2.7 Parliament House, Canberra
28
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to public scrutiny, and as a result, well-
Capital Territory has fewer steps, as there
organised pressure groups and members
is only one legislative chamber. Bills of
of electorates can influence parliamentar-
the ACT are not given royal assent by the
ians’ opinions. Bills are usually introduced
Governor-General, and this territory has
by ministers, who are responsible for their
no Governor or Administrator.
R EVI EW 2 . 2 1 Explain how common law originated. 2 Describe how people were England. What were the
can introduce a bill; however, if a bill
Delegated legislation
is introduced by a member who is not a
Delegated legislation is legislation made
minister (called a backbencher), the bill is
by non-parliamentary bodies. It involves
known as a private member’s bill.
‘less impor tant’ laws that parliament does
problems with this system? 3 Define equity law and explain how it differs from the common law.
As members of parliament are subject
not have time to draft, consider and pass,
4 Explain why Australian law
to elections every few years, they are well
and so delegates the responsibility to
is based on common law
aware of the consequences of passing un-
‘subordinate’ bodies, such as government
principles.
popular legislation. This means that pro-
departments or local councils. The Act
posed legislation often undergoes much
that authorises a body to make delegated
between court-made law
discussion in parliament and may be
legislation is called an ‘enabling Act’.
and statute law.
redrafted many times. Before a bill passes and becomes federal
Types of delegated legislation include: 1 regulations
–
laws
made
by
the
law, it requires the approval of both houses
Governor-General, state Governors or
of parliament and the Governor-General.
members of the Executive Council
It then becomes an Act of Parliament. The process for passing laws through the New South Wales Parliament (as well
2 ordinances – laws made for Australian territories (e.g. Norfolk Island and the Australian Antarctic Territory)
5 Identify the differences
6 How is the principle of precedent used in court decisions? 7 Evaluate the importance of the Gutnick v Dow Jones & Co. Inc case. 8 Devise a way to explain to
as other states with bicameral parliaments)
3 rules – legislation made for government
the public how an Act of
is generally the same as passing laws
departments, usually by the department
Parliament is made. You
through Federal Parliament. This process
involved
may wish to use a series of
is outlined in Figure 2.8. The process for passing laws in the Legislative Assembly of the Australian
4 by-laws – laws made by local councils which are restricted to the area governed by that council.
The leg al s y s tem
tried for crimes in medieval
preparation. Any member of parliament
cartoons or a storyboard. 9 Define delegated legislation. Demonstrate your knowledge with appropriate examples.
Table 2.1 The advantages and disadvantages of delegated legislation Advantages
Disadvantages
s The people making the legislation are usually experts in that field. s Delegation of minor legislation frees up parliamentary time for very serious issues. s It is easier to amend delegated legislation and thus it is more flexible.
s Members of parliament do not have the time or expertise to fully check the delegated legislation. s With many different bodies involved in making delegated legislation, there can be inconsistencies. s Little publicity surrounds the delegated legislation and thus the public usually cannot voice their views.
Act of Parliament Statute law, resulting from a bill successfully passing through parliament and gaining royal assent
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THE PROCESS OF PASSING A BILL THROUGH PARLIAMENT
Need for new law is identified
Influences on governments to make laws come from many and varied sources. These include: s COMMUNITYINTERESTLOBBYGROUPS s electoral mandate s the need to continue or enhance existing laws s party policy s NATIONALINTERNATIONALEVENTS s proposals put forward during election campaigns.
Draft bill
Cabinet approves the drafting of a bill. The proposed bill is drafted by parliamentary clerks and timetabled for its first reading in the Lower House. The bill is presented by the minister, ready for its first reading.
First reading
The first ‘formal’ reading of the bill takes place by the Clerk of the Parliament who reads out the title of the bill. Each member receives a copy of the proposed Act.
Second reading
The minister then speaks about the proposed Act, elaborating on its general aims. Debate over the bill takes place. This stage is completed by the Clerk reading the title of the bill for the second time.
Committee stage
The bill is examined and debated INDETAILANDCHANGESKNOWNAS amendments) are made if necessary.
Third reading
During the third reading a vote is taken on the bill. If the bill passes, it moves to the Upper House.
Upper House
In the Upper House, the process is repeated. If the bill does not pass in the Upper House is may be returned to the Lower House for AMENDMENTSORMAYBEREJECTED
Royal assent
If the bill is passed in the Upper House, it is presented to the 'OVERNORINTHECASEOF.37 legislation) or Governor-General INTHECASEOFFEDERALLEGISLATION for formal approval. The bill now becomes an Act of Parliament and is law as of the date specified in the Act.
Figure 2.8 The passage of a bill through parliament
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A constitution is a set of rules that may apply to
six colonies amalgamated into one nation under
a social club, a large-scale organisation or even
one centralised government. An emotional and
a nation. On 1 January 1901, Australia gained a
sometimes bitter debate raged for two decades
Commonwealth Constitution, which outlined the
until federation was achieved.
legal framework and rules that apply to the governance of Australia. Prior to the Australian Constitution coming into
It is important to look at the arguments for and against federation in Australia because these
different
considerations
shaped
the
force, Australia consisted of six colonies, which
content of the final constitution document. As
were independent of each other with the right to
with any democratic process, politicians have to
govern within their own borders. These six colonies
persuade the public to vote for their proposals,
were not answerable to any authority in Australia,
and sometimes they have to make trade-offs to
but rather to the British government. By the 1880s
gain voter confidence. This was essential to get
various groups and individuals began to promote
the necessary votes in the each of the federation
the concept that Australia would be better off if the
referendums.
Table 2.2 !RGUMENTSFORANDAGAINSTFEDERATIONIN Arguments for federation
Arguments against federation
Economics: the removal of trade barriers between the colonies would promote a more efficient economy
Trade: tariffs could be used to protect industries in certain colonies from competition in other colonies
Transport: a national rail network would overcome problems caused by the colonies having different rail gauges
Fear: smaller states believed that the more populous and ‘richer’ states would simply override their interests
Defence: as the colonies were far from Britain and thus from Britain’s ability to assist in the event of attack, a unified military force would reduce vulnerability
Apathy: many people felt that federation was irrelevant to their daily lives; this was compounded by the severe economic DEPRESSIONOFTHES
Nationalism: there was a desire to foster a unique Australian identity and culture distinct FROMTHE@MOTHERCOUNTRY %NGLANDIN OF!USTRALIANSWEREOF"RITISHORIGIN
Expense: federation would be expensive to achieve and a national government would be expensive to run
Racial ‘purity’: implementing national policies restricting immigration would ‘keep Australia WHITETHEWhite Australia Policy)
Cheap labour: Queensland was determined to protect its sugar industry by allowing Pacific )SLANDERSKANAKAS TOWORKONTHESUGAR plantations
After a series of referendums in 1898, 1899 and
ment was required. The Commonwealth of Australia
1900, the colonies eventually found a compromise
Constitution Act 1900 (UK) was passed and Australia
position on a proposed constitution, but, before it
came into existence as a nation on 1 January 1901.
could take effect, approval from the British Parlia-
The key features of this British Act were:
federation the process of uniting several states to form a single national government referendum the referral of a particular issue to the electorate for a vote rail gauge the distance between the inner sides of the two rails of a train line White Australia Policy the government policy of allowing only Europeans and English-speaking people to immigrate to Australia tariff a tax that must be paid on imports or exports
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The leg al s y s tem
T h e Co n s t i t u t io n
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Figure 2.9 Kanakas at work on the Queensland cane farms
Figure 2.10 !POSTERFROMTHEEARLYSPROMOTINGTHEAIMSOFTHE White Australia Policy
s Australia was a federated nation consisting of
s The Senate provides a ‘check’ (restraint) on
six states (Western Australia joined shortly after
the power of the House of Representatives.
the other states). The Northern Territory gained
The Senate is sometimes called the ‘states’
self-government in 1978 and the ACT in 1988.
house’, since all states have the same number
s There was a bicameral federal parliament (House of Representatives and Senate).
s abbreviation for ‘section’ of any legislation; ‘ss’ is the abbreviation for @SECTIONSPLURAL
of senators (12) regardless of population. Each territory has two senators.
s A High Court of Australia was established to
s Section 128, which covers the process for alter-
oversee any other courts and provide ‘final
ing the Constitution, specifies that a majority
and conclusive’ judgments upon any appeals it
of states need to vote ‘yes’ on a proposal for
hears (s 73 of the Australian Constitution).
it to succeed – that is, four out of six states.
s It outlined both the division of power and the
In addition, an absolute majority of voters
separation of powers as they would apply in
Australia-wide must vote ‘yes’ – that is, 50 per
Australia.
cent of voters plus one. It should be noted that
s It enabled the Constitution to be altered by a ref-
this strict requirement has made constitutional
erendum (s 128 of the Australian Constitution).
change very difficult: no referendum has suc-
The Constitution itself is s 9 of the Common-
ceeded since 1977.
wealth of Australia Constitution Act. Although
s The ‘division of power’ outlined in s 51 ensures
the Constitution came into force through an Act
that the states have control over the ‘residual
of the British parliament, the Act brought the
powers’, that is, those not listed in s 51. This will
Commonwealth of Australia into existence as a
be examined in detail later in this chapter.
nation, and the Constitution can be changed only by a referendum of Australian voters. The Australian Constitution contains certain
32
Division of power
‘checks and balances’ as a result of debate and
After all the controversy and discussions leading
discussion during the federation process:
up to the formalisation of the Australian Consti-
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tution, the fundamental concern of what powers the states would retain and what powers the federal government would have was resolved in Chapter I, Part V of the Constitution, in sections 51 to 60. Quite simply, the Constitution divided up
The leg al s y s tem
the powers between the federal government and the states. Section 51 of the Constitution specifies the legislative powers of the federal parliament. The federal parliament has the power to make laws with respect to all of the matters listed in s 51. These are sometimes referred to as the ‘enumerated powers’. It is important to realise that the states can also make laws in many of the areas listed in s 51, namely, those areas over which the federal and state governments have concurrent powers. Section 52 outlines the exclusive powers of the federal government – that is, those areas in which only the Commonwealth (federal) parliament can legislate: i
the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes
ii matters relating to any department of the public service controlled by the Commonwealth, according to the Constitution iii other matters declared by the Constitution to
Figure 2.11 The states’ different rail gauges were a ‘legacy’ of the colonial system of Australia. The Constitution refers to this ISSUEINSXXXII XXXIII ANDXXXIV 2AILGAUGESFORALLSTATES are now standardised, allowing efficient interstate rail travel.
be within the exclusive power of the Commonwealth parliament.
wealth make contradictory laws. This is found
The exclusive powers of the federal government
in s 109: ‘When a law of a State is inconsistent
include the areas of trade and commerce with other
with a law of the Commonwealth, the latter shall
countries, foreign relations (‘external affairs’), and
prevail, and the former shall, to the extent of the
national defence. While s 90, for example, states
inconsistency, be invalid.’ This will be discussed
clearly that the federal government has exclusive
later in this chapter.
power over customs, and s 114 forbids the states
Those powers which belong solely to the states
from raising or maintaining any military force,
are known as the residual powers. Each state
determining how the Constitution applies to a
has its own constitution, which enables the state
real-life question or dispute is not always clear-cut.
to make laws in various areas, but excludes any
Constitutional interpretation is the task of the High
area directly denied to the states by the Australian
Court, and we will look at some important cases in
Constitution. Chapter V of the Constitution outlines
which that court has clarified the nature and scope
some of these prohibitions. Some of the key residual
of the powers.
powers are in the areas of de facto relationships (in
Obviously there needs to be a conflict resolution mechanism in place if a state and the Common-
legislative powers the legal power or capacity to make laws concurrent powers existing at the same time; powers held by both state and federal parliaments exclusive powers powers that can be exercised only by the federal parliament residual powers those remaining matters on which the states can legislate, which are not referred to in the Constitution
NSW this now includes same-sex relationships), crime, hospitals and public transport.
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l e g a l i n fo
Commonwealth Government legislative powers The following extract from the Australian
[…]
Constitution lists some of the legislative
(xxvi)
powers of the federal parliament.
it is deemed necessary to make special laws;
Section 51. The
(xxvii) immigration and emigration;
Parliament
shall,
subject
to
this
(xxviii) the influx of criminals;
Constitution, have power to make laws for
(xxix)
the peace, order, and good government of
[…]
the Commonwealth with respect to:
(xxxi)
(i)
[…] (v)
(vi)
the Parliament has power to make laws; (xxxii) the control of railways with respect to transport for the naval and military
postal, telegraphic, telephonic, and other like services; the naval and military defence of the
purposes of the Commonwealth; (xxxiii) the acquisition, with the consent of a State, of any railways of the State
Commonwealth and of the several
on terms arranged between the
States, and the control of the forces to execute and maintain the laws of the Commonwealth;
Commonwealth and the State; (xxxiv) railway construction and extension in any State with the consent of that
[…] (xii)
currency, coinage, and legal tender;
[…] (xv)
State; (xxxv) conciliation the
weights and measures;
(xxxvii) matters referred to the Parliament
marriage;
(xxii)
divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
(xxiiiA) the provision of maternity allowpensions,
of
the
Commonwealth
by
the
Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred,
invalid and old-age pensions;
widows’
for
settlement
[…]
(xxi)
ances,
arbitration and
beyond the limits of any one State;
naturalization and aliens;
[…]
(xxiii)
and
prevention
of industrial disputes extending
[…] (xix)
the acquisition of property on just
any purpose in respect of which
taxation; but so as not to discriminate between States or parts of States;
external affairs;
terms from any State or person for
trade and commerce with other countries, and among the States;
(ii)
the people of any race, for whom
or which afterwards adopt the law;
child
endowment, unemployment, pharmaceutical, sick ness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
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If either the Commonwealth or a state
Franklin was included as one such area.
government passes a law that contravenes
Now there was a state law allowing the
the Australian Constitution, then that law
construction of the dam and a federal law
would be deemed unconstitutional and
which demanded that it be stopped.
thus be declared invalid.
The case went to the High Court.
Technically the government would be
There are seven judges on the full
said to be acting ultra vires. But what
bench of the High Court. In a 4–3
happens if the state and Commonwealth
decision, the court ruled that the federal
laws were both valid, as can often be the
government was validly using the
case with a concurrent power? This
external affairs power of the Constitution
situation arose in Commonwealth v
(s 51(xxix)), which gives it the authority to
Tasmania [1983] HCA 21, known more
legislate on any matter of ‘international
commonly as the Tasmanian Dam case.
concern’. Although Tasmania had argued
Tasmania wanted to build a
that the construction of the dam and the
hydroelectric dam on the Franklin
regulation of that area of the state were
and Gordon river system. A group of
purely internal or domestic affairs, the
environmentalists began a protest
High Court held that the Commonwealth
campaign against this proposal and the
had the power to make laws with respect
Wilderness Society and the Australian
to international obligations that also
Conservation Foundation got actively
govern conduct within Australia. Under
involved. Nationwide protests were
s 109, the federal law would override the
organised under the ‘No Dams’ slogan,
state law. Section 109 states that ‘when a
and a range of high-profile personalities
law of a State is inconsistent with a law of
took up the cause.
the Commonwealth, the latter shall prevail,
Tasmania refused to budge. The
ultra vires ,ATIN BEYONDTHE power or authority legally held by a person, institution or statute to perform an act external affairs power the power of the Commonwealth to legislate on international matters involving Australia; interpreted by the High Court to mean that when the Commonwealth signs an international treaty or convention it has the authority to enact laws to give effect to this international law within Australia
T he leg al s y s tem
ca s e s p a ce
Commonwealth v Tasmania [1983] HCA 21 (‘Tasmanian Dam case’)
and the former shall, to the extent of the
Tasmanian government argued that the
inconsistency, be invalid’. The construction
building of the dam was a residual power
of the dam was stopped and the Franklin
and the protesters, while entitled to their
River was ultimately preserved for future
view, were not going to change Tasmania’s
generations.
decision. In the lead-up to the 1983 federal election, the leader of the Australian Labor Party promised to stop the dam if elected. Labor won the election, but Tasmania continued to build the dam. The federal government recognised the Wild Rivers area as a region of special significance and it was listed under the World Heritage Convention. The federal government passed the World Heritage (Property Conservation) Act 1983 (Cth), which specified that such areas of special significance should be protected. The
Figure 2.12 There were numerous street marches PROTESTINGAGAINSTTHECONSTRUCTIONOFTHE&RANKLIN$AM
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ca s e s tu d y
Amending the Australian Constitution The law and the legal system must be dynamic to be effective. Mechanisms must be in place to change ineffective, obsolete
General for royal assent. In 1967, one of the more popular
or unfair laws. Statutes (Acts of Parliament)
referendums altered s 51(xxvi) and deleted
can be changed through the parliamentary
s 127, which enabled the Commonwealth
process. Common law can be changed
government to pass laws in relation
through the courts when a judge
to Aboriginal people and Torres Strait
sets a new precedent. The Australian
Islanders. This ensured consistency of
Constitution, while technically a statute,
laws, as some states had discriminatory
has a unique alteration process contained
laws and were reluctant to change them.
within it. This process is found in Chapter
Other successful referendums included
VII, ‘Alteration of the Constitution’, s 128,
amending s 72 so that judges in the
and is known as a referendum.
High Court and the other federal courts
Of the 44 proposed amendments to
bipartisan having the support of THETWOMAJOR political parties
5 The alteration must go to the Governor-
had to retire at age 70. This was the last
the constitution, only eight have been
successful referendum; the next nine
successful. In some published copies
proposals were all defeated. The last
of the Australian Constitution, these
referendum was held on 11 November
successful amendments are often shown
1999 and involved changing Australia to
in bold type or by having deleted parts
a republic with a president appointed
ruled through (see s 51(xxvi)). The margin
by a two-thirds majority of both houses
notes also indicate alterations made
of parliament, which would require
to the Constitution after a successful
bipartisan support of the nomination. The
referendum. The specifics of successfully
proposal was soundly defeated, but the
altering the Australian Constitution, as set
push to make Australia a fully independent
out in s 128, are:
nation remains.
1 The proposed change must pass both houses (Senate and House of Representatives) with an absolute majority. 2 The proposed change must be put to the electors ‘not less than two months nor more than six months’ after going through both houses. 3 There must be an absolute majority of voters Australia-wide who approve the change, that is, 50 per cent of voters plus one. 4 There must be a majority of states that approve the change, that is, four of the six states must vote for the change.
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The leg al s y s tem Figure 2.13 )N !USTRALIAVOTED@YESTOALLOWTHEGOVERNMENTTOMAKELAWSCONCERNING)NDIGENOUSPEOPLE
REVIEW 2.3 1 Define the term ‘constitution’. 2 Use examples to outline the constitutional division of
c Outline the process by which the federal government could construct a rail line from Brisbane
power. In your answer distinguish between:
to Melbourne. Refer to s 51(xxxii), (xxxiii) and
a legislative powers
(xxxiv).
b enumerated powers c concurrent powers d exclusive powers e residual powers. 3 Study the extract of s 51 and answer the following
d What part of the Constitution reproduced here has been altered by a referendum? Explain the impact of this amendment. e Explain s 51 (xxxvii) in your own words. 4 Write a summary of Commonwealth v Tasmania [1983]
questions:
HCA 21 using the following headings:
a Under what section of the Constitution can the
a facts
federal government legislate with respect to
b issue
imports and exports? Explain your answer.
c judgment.
b With specific reference to s 51(xxi) and (xxii) outline
5 With specific reference to s 128, outline why it is so
the grounds on which de facto relationships are
difficult to alter the Australian Constitution, even if
considered residual powers. Explain why these
more than 50 per cent of voters want the proposed
relationships were not covered in the Constitution
change.
by our ‘founding fathers’.
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Separation of powers The separation of powers doctrine was developed by the 18th-century French political philosopher, Charles de Secondat Montesquieu. He believed that the civil liberties of the public were at risk if civil liberties basic individual rights, such as freedom of speech and religion, which are protected by law
the key organs of government were controlled by one person or group. Montesquieu identified these key organs of government as: s the legislature – the law-makers (in Australia this is the parliament: the House of Representatives and the Senate) s the executive – the ministers and government departments who administer the laws made by parliament (in Australia the Governor-General,
is, the ministers and the prime minister are members of both the executive and the legislature – the separation of powers does not exist in its pure form in Australia. The key feature of the separation of powers in Australia is that there is a clear distinction between the judiciary and the other arms of government. For a true democracy to operate, and in the interests of justice, it is imperative that there be no overlap between the judicial and non-judicial arms of government. Protecting the independence of the judiciary is one of the cornerstones of our democracy. This becomes evident when a court makes a decision that is not in accordance with government policy.
the Prime Minister and Cabinet are members of the executive) s the judiciary – the courts which interpret and
Role of the High Court
apply the law.
Chapter III of the Australian Constitution is titled
If one person or group controls all three organs
‘The Judicature’ and it is within this chapter that the
or arms of government, then he, she or it has
judicial system of the Commonwealth is created.
unfettered power and the risk of
Section 71 creates the High Court of Australia and
dictatorship is very real. If the three
specifies that it must contain one Chief Justice
arms are independent, each acts as
and at least two other judges. In September 2008,
a check on the others, ensuring that
Robert Shenton French was appointed the 12th
no branch abuses its power and
Chief Justice of the High Court.
RE VIE W 2.4 1 Distinguish between the three ‘arms’ of government. 2 Explain how the separation of powers operates in Australia. 3 Outline the significance of the separation of powers for the functioning of a democracy.
that civil liberties are protected.
The first sitting of the High Court was on
Australia’s founders certainly
6 October 1903, with three judges. In 1906 the
wanted the doctrine of the separ-
number of judges was increased to five and in
ation of powers to apply upon
1912 the number of judges was further increased
federation. The first three chapters
to its current number, seven.
R E SEA RC H 2.1
of the Constitution are set out in
1 Investigate the concept
accordance with the doctrine:
Parliament to create other courts. Over time,
s Chapter I – The Parliament
parliament has created the Federal Court, the
of mandatory sentencing and discuss how this may come into conflict with the independence of the judiciary when determining punishments.
s Chapter II – The Executive (sections 61 to 70) s Chapter III – The Judicature
Family Court and the Federal Magistrates Court, which all come under federal jurisdiction. Section 72 outlines how High Court judges are appointed, and as a result of a successful refer-
(sections 71 to 80)
endum in 1977, specifies that they must retire
In theory Australia has adopted
when they reach the age of 70. Most High Court
operation of the separation
the doctrine of the separation of
judges come from the bench of the state Supreme
of powers in Australia with its
powers. However, because some
Courts or the Federal Court. They are chosen by the
operation in either France or
members of the executive are
‘Governor-General in Council’, which essentially
the United States of America.
members of the legislature – that
means they are chosen by the government of the
2 Compare and contrast the
38
(sections 1 to 60)
Section 71 also allows the Commonwealth
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day. While most sittings are in Canberra, cases
way in which the law maintains its relevance and
can be heard in the other capital cities and even
effectiveness.
by video link if it is warranted.
When a case concerning the interpretation of
High Court jurisdiction
all seven judges hear and decide the matter. This
The High Court has both original and appellate
ensures a final decision, even though decisions
jurisdiction. The original jurisdiction of the High
need not be unanimous. The High Court is the
Court is outlined in ss 75 and 76:
highest court in the Australian judicial system, and since 1986, there are no other avenues of appeal
Section 75
available. The Australia Act 1986 (Cth) severed
In all matters –
the judicial link with England; appeals from the
(i) arising under any treaty; (ii) affecting consuls or other representatives of other countries;
Australian judicial system no longer go to the Privy Council in England for final determination.
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of
The impact of the High Court: Interpreting the Constitution Invariably, the High Court’s interpretation of the
another State; (v) in which a writ of mandamus or prohibition
Constitution involves stipulating what areas the
or an injunction is sought against an officer of
Commonwealth can legislate on and what areas
the Commonwealth;
belong to the states. In association with such decisions, the High Court makes statements on
the High Court shall have original jurisdiction.
The leg al s y s tem
the Constitution comes before the High Court,
original jurisdiction the ability or power of a court to hear a case in the first instance mandamus a court order compelling a government official or organisation to perform a particular task prohibition a court order that forbids a lower level court from hearing or taking further action in a case or matter injunction a court order stopping an individual or organisation from performing a particular action
how each level of government can use its powers
Section 76 The Parliament may make laws conferring original jurisdiction on the High Court in any matter – (i) arising under this Constitution, or involving its interpretation; (ii) arising
under
any
laws
made
by
the
Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject matter claimed under the laws of different States.
Cases which come under original jurisdiction begin in the High Court itself. Matters relating to the interpretation of the Constitution fall under s 76(i) and this role of the High Court has at times had an enormous influence on determining the division of power between the states and the Commonwealth. As community conditions, standards and attitudes evolve, they should be reflected in the views expressed by the judiciary. This is another
Figure 2.14 The High Court makes statements on how each level of government can use its powers, and outlines any limits on these powers.
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fiscal relating to government financial matters
and outlines any limits on such powers. For
taxes. In return, the Commonwealth agreed to
example, in the Tasmanian Dam case, the High
return to the states a grant of money about equal to
Court said in obiter dicta that the Commonwealth
what they could no longer collect as income tax.
can only use the external affairs power when
These grants are under s 96, which states that
entering legitimate international treaties or con-
‘the Parliament may grant financial assistance
ventions. In other words, the Commonwealth
to any state on such terms and conditions as the
Government could not enter a treaty with another
Parliament thinks fit’. The states believed the new
country simply to gain legitimacy to override a
law would not only deny them financial inde-
state law that it disagreed with. Initially High Court
pendence, but would allow the Commonwealth to
decisions favoured the states, but over time a
dictate how they spent these grants.
broader approach to interpreting the Constitution
The states did not like this proposal, as it would
has seen a shift in the legislative balance between
make them reliant on the Commonwealth for the
the states and the Commonwealth. The following
bulk of their revenue. The states went to the High
cases are examples of the High Court exercising its
Court, claiming the new law was aimed primarily
original jurisdiction to interpret the Constitution.
at denying them the right to collect income tax and thus reducing their fiscal independence. The High
South Australia v Commonwealth (the ‘First Uniform Tax case’) [1942] HCA 14
Court ruled that this was irrelevant; the proposed
Section 51(ii) of the Constitution clearly gives the taxes. This was considered a concurrent power,
Murphyores v The Commonwealth (‘Fraser Island case’) [1976] HCA 20
so both the Commonwealth and the states were
Murphyores extracted certain minerals from sands
collecting income taxes until 1942. As a wartime
on Fraser Island under a lease granted by the
emergency measure, federal laws were introduced
Queensland government. Such a lease was certain-
which effectively made the Commonwealth the
ly constitutionally valid, and the environmental
only level of government able to collect income
consequences were also a state concern.
Commonwealth the legislative power to collect
law was constitutional and therefore valid.
Figure 2.15 &RASER)SLAND SITUATEDOFFTHESOUTH EASTCOASTOF1UEENSLAND ISNOW7ORLD(ERITAGELISTED
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with the project, partly on environmental grounds,
R ESEAR CH 2 . 2 1 Go to www.austlii.edu.au/au/cases/cth/HCA/ Write a
but had no constitutional power to simply shut
report on any two cases dealing with the Constitution,
down the operations on Fraser Island. Instead it
outlining:
relied on one of its legislative powers – specifically
a the facts of the case
s 51(i), over trade and commerce – to prohibit
b which section of the Constitution the case refers to
export of the minerals. Murphyores relied on those
c the High Court’s decision
exports for its financial viability, but under s 112
d the significance of the decision.
of the Customs Act 1901 (Cth), the Commonwealth could prohibit the export of any goods from Australia, either absolutely or unless certain conditions were complied with.
The leg al s y s tem
The Commonwealth government disagreed
2 Go to www.hcourt.gov.au/justices.html and list the current members of the High Court. 3 Go to www.hcourt.gov.au/about_06.html and undertake a virtual tour of the High Court.
Murphyores went to the High Court, arguing that the Commonwealth had acted outside its constitutional power, but the High Court noted that, while the effect of the use of s 51 may well be to override a traditional state power, the Commonwealth
Appeals to the High Court from lower courts
was within its rights to prohibit the exports of the
Section 73 outlines the appellate jurisdiction of the
minerals. The motivation for the Commonwealth’s
High Court. It stipulates that the High Court has
use of the power – such as concern about the
jurisdiction to ‘hear and determine all judgments’
environmental effects – was irrelevant.
from any cases emanating from: s the
R v Brislan; Ex parte Williams [1935] HCA 78 Dulcie Williams was convicted of operating an appliance for the purpose of receiving messages by
High
Court
exercising
its
original
exercising
federal
jurisdiction s any
Federal
Court
jurisdiction s the Supreme Court of any state.
‘wireless telegraphy’ without proper authorisation.
Section 73 also states that ‘the judgment of
What she was maintaining was an ordinary
the High Court in all such cases shall be final
radio ‘wireless broadcasting receiving set’ (that
and conclusive’. Currently, all appeal cases must
is, a radio). In the appeal, it was claimed that
be granted special leave before the case will be
the Commonwealth had acted ultra vires when
heard by the High Court. Chapter 4 of the High
charging her under the Wireless Telegraphy Act
Court Rules 2004, which became effective on
1905, as the section under which she was charged
1 January 2005, deals with the practice and
does not extend to radio sets and if it did, it was
procedure of the High Court in its appellate
invalid, because s 51(v) of the Constitution covers
jurisdiction.
‘postal, telegraphic, telephonic and other like services’, but not broadcasting.
Generally, appeals relate to questions of law, or a matter that is of such significance as
The High Court ruled that ‘upon its true
to warrant the attention of the High Court, or a
interpretation’ the Commonwealth is able to
dispute between the opinions of various courts
legislate in respect of any such broadcasting
that requires a final adjudication. The workload of
services. Consequently, it has been accepted that
the High Court has built up over the decades and
the Commonwealth has the constitutional power
there are numerous examples of the High Court
to make laws with respect to new developments
deciding matters in its appellate jurisdiction. One
in communications technology, such as television
of the more famous cases is Osland v R, a 1998
and the internet.
appeal from the Victorian Supreme Court.
R ‘R’ at the beginning of a case name refers to Regina ,ATINFOR@1UEEN Since Australia is a constitutional monarchy this refers to our head of state on whose behalf the prosecution case is run. When the head of state is a male, as WASTHECASEIN the ‘R’ stands for Rex, which is Latin for ‘King’. ex parte ,ATIN @FROMONESIDE in a case this means the other side is absent or unrepresented special leave where the High Court grants approval for the case to go before it on APPELLATEJURISDICTION questions of law a disputed legal contention that is left FORTHEJUDGETODECIDE EGWHETHERCERTAIN evidence is admissible)
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ca s e s p a ce
Osland v R [1998] HCA 75 On 30 July 1991 Heather Osland
of grounds including the conduct
sought a formal pardon from
and her son David Albion planned
of the trial, criminal complicity,
the Governor of Victoria, in
to get Frank Osland (Heather’s
evidence issues and causation
an attempt to clear her name.
husband and David’s stepfather)
issues.
When the pardon was refused,
out of their lives. They first dug
she sought access to documents
the issue of ‘battered woman
outlining the reasons why. In
by putting sedatives in his
syndrome’ (BWS) for the first
2008, Heather Osland stated:
evening meal to induce sleep.
time in Australia. The High Court
‘Domestic violence is a big issue
David Albion carried the plan
confirmed its admissibility into
today, but in my day it was locked
to finality after Frank went to
evidence if it ‘related to the
in a cupboard.’
bed by fatally hitting him over
particular facts of the case’. The
the head with an iron pipe in the
High Court specified that BWS
presence of Heather. Later, David
was not a new discrete defence
and Heather buried Frank in the
but was applicable in Australia
grave they had earlier prepared.
where ‘ … expert evidence is
David and Heather did not
received to describe common
deny digging the ‘hole’ (as they
features of the conduct in
called it) or giving Frank the
abusive relationships and where
sedatives. They also did not deny
provocation and self defence are
that David delivered the fatal
put in issue’.
blow or that they buried Frank
The point was made, obiter
in the ‘hole’. Heather reported
dictum, that abusive relationships
Frank as a missing person. It
are not gender-specific.
wasn’t until January 1995 that the pair were charged with murder. Both David and Heather
As a result of this ruling, ‘battered partner syndrome’ was accepted into the fabric of
Figure 2.16 Changing social attitudes should be reflected in High Court rulings. Domestic violence is no longer a ‘hidden CRIME ANDMOREJUSTOUTCOMES are now possible, depending on the facts of the case.
relied on self-defence and
the criminal justice system; that
provocation to account for
is, victims in such relationships
their actions. The defence
could use it where the facts did
provided detailed evidence of
not allow them to rely solely on
extreme violent behaviour by
provocation or self-defence.
Frank over the years, and its
Ironically, the High Court ruled
R ESEAR CH 2 . 3
escalation in the days preceding
that it did not apply in Osland’s
1 Read Heather Osland’s
his death. David and Heather
case.
believed there would be dire
Justice Kirby noted that the
story, in her own words, at http://home.vicnet.net.
consequences for them if Frank
raising of battered partner
au/~rhog/story.htm
realised he had been drugged.
syndrome ‘does not raise a
2 Conduct research using
Initially David was acquitted
protective cloak over an accused
the internet, then
and Heather was convicted of
charged with murder’.
compare and contrast
murder and sentenced to 14
42
The High Court also dealt with
a grave, then drugged Frank
Heather Osland spent nine-
years’ imprisonment. Heather
and-a-half years in prison. She
appealed this decision on a range
was released in July 2005 but
Said Morgan’s case with Heather Osland’s.
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review a decision on its merits. Appeals can go to the High Court, by leave.
The system of judicial review involves review of
A far more effective and efficient way for indi-
the actions of a government official or department,
viduals to appeal the decision of a government
by a court of law. Generally the system of judicial
official or body is through non-judicial review
review involves investigating the legality of a
of administrative action in the Administrative
decision or action. The High Court exercises
Appeals Tribunal, which has jurisdiction to review
judicial review whenever it makes a decision about
the merits. Courts other than federal courts may
whether a particular law is constitutionally valid or
also review decisions on the merits, if they have
not. It has almost unlimited jurisdiction to review
statutory authority to do so.
Commonwealth administrative decisions.
Generally, judicial review involves the court
The Federal Court undertakes most judicial
with appropriate jurisdiction investigating whether
reviews by applying the Administrative Decisions
a government official or department has acted
(Judicial Review) Act 1977 (Cth). It is important
ultra vires, or whether he, she or it has followed
to understand that this Act applies strict rules
the rules of natural justice (procedural fairness).
and does not give the Federal Court the power to
These concepts are covered in the HSC course.
merits review analysis of the facts presented in a case, and often the policy choices that led to the decision natural justice the body of principles used to ensure the FAIRNESSANDJUSTICEOF the decision-making procedures of courts; in Australia it generally refers to the right to present your case, the right to freedom from bias by decisionmakers, and the right to a decision based on logically relevant evidence
The leg al s y s tem
Judicial review
Aborigi na l a n d To rres St ra it I s l a n de r Peop l es’ c u s t o m a r y l aw s The Indigenous cultures of Australia are the oldest
Torres Strait Islander communities, speaking
living cultures in the world. Over time, they have
different languages and with various cultural
been influenced by other peoples, both those who
beliefs, practices and traditions. It was very
came to Australia to stay and those who visited
much a hunter-gatherer lifestyle, and one in
Australia for trade or other reasons, but did not stay.
which gender played a role: men hunted the large
Indigenous peoples also traded among themselves
animals such as kangaroos, emus and turtles, and
and exchanged ideas, songs and dances. These
the women and children hunted smaller animals
exchanges often took place at large ceremonial
and collected fruits, berries and other plants.
gatherings where many people collected together.
On the coast, people relied on catching fish and
The gatherings often occurred at a time and place
many types of shellfish. Not all Indigenous peoples
when there were plenty of particular foods.
were nomadic; in many cases, groups would
Like
all
cultures,
Indigenous
Australian
stay in an area only for a certain period of time
cultures have changed and developed over time.
because of seasonal variations and the availability
Colonisation of Australia brought rapid changes to
of food.
Indigenous society and dramatically affected the land and the way people lived.
There is no single system of Aboriginal and Torres Strait Islander law. The separate Indigenous
Prior to European settlement, only Indigenous
nations developed their own laws, but there were
people populated Australia. When the First Fleet
also common aspects among groups. All of these
sailed into Sydney Harbour in 1788, Aboriginal
laws are spiritually based and closely linked to the
people inhabited the whole of Australia and Torres
land. Aboriginal and Torres Strait Islander law is
Strait Islanders lived on the islands between
based on tradition, ritual and socially acceptable
Australia and what is now Papua New Guinea.
conduct. For this reason it is known as ‘customary
Australia had many different Aboriginal and
law’.
customary law principles and procedures that have developed through general usage according to the customs of a people or nation, or groups of nations
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A main difference between Aboriginal and Torres Strait Islander customary law and the British
The spiritual nature of Indigenous customary law
legal tradition can be seen in the area of land
terra nullius ,ATIN @LANDBELONGING to no-one’; the idea that when the first Europeans came to Australia the land was owned by no-one and thus was open to settlement. It has been JUDGEDLEGALLYINVALID Dreamtime also known as ‘the Dreaming’, the source of Indigenous Australian customary law
ownership. The right to possess property is a key
The Dreaming is the basis of much Aboriginal
principle of English and European law. However, to
and Torres Strait Islander law. The Dreaming, also
many Aboriginal and Torres Strait Islander peoples,
known as the Dreamtime, is the history of Abori-
land is sacred and cannot be owned. Instead people
ginal and Torres Strait Islander peoples. It explains
are custodians of the land, looking after it for
how the land, animals, plants and sky were created
future generations. This collective guardianship is
and has a very strong religious element.
a key feature of customary law. However, the lack
Due to the secrecy that covers many of the
of tangible ownership is the reason why the British
traditional laws and the cultural role played by
people felt that they could settle and impose British
oral history, in contrast to written documentation,
property law in Australia. The British considered
it is hard to describe these laws and their links to
Australia to be an unoccupied land, as they could
the Dreamtime. In addition, laws will differ from
not see any signs of ownership, such as fences and
community to community.
signs. The term that they used for this is ‘terra
However, it can be agreed that law and religion
nullius’, a Latin expression meaning ‘empty land’.
are very closely related, and that many laws have
Although federal and state legislation and the
evolved from the Dreamtime and are concerned
common law govern Australia, many Indigenous
with the treatment of the land and those who live
people still follow their own customary law as
on it.
well.
Since 1788, many Indigenous people have lived under two legal systems, the common law system deriving from Britain and Indigenous customary law. As more than two-thirds of Aboriginal and Torres Strait Islanders live in remote areas, they are more likely to use customary law to settle a dispute.
Diversity of Indigenous societies Aboriginal and Torres Strait Islander law is tribal and different tribes have their own variations of customary law. Australia is a large land mass, and as a result, different languages and modes of conduct developed. However, the similarities in customary law outweigh the differences. For example, under traditional law, the majority of Indigenous communities will generally see that disputes are not restricted to individuals. The resolution of the dispute, involving negotiation, mediation and conciliation, will involve everyone Figure 2.17 Aboriginal rock paintings
44
in the community. There are also offences that
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would be held during ceremonial times. Elders
punishable under traditional law. Examples include
and influential members of the tribe might meet
insulting an elder and the singing of sacred songs
with the people in conflict and use discussion and
in public. These offences are common to most
dialogue in an attempt to settle the dispute.
Indigenous societies regardless of where they are located in Australia.
Relationships and their maintenance are very important in Aboriginal and Torres Strait Islander communities. It is through these relationships that
Ritual and oral traditions within Indigenous societies
people are able to pass on and follow traditional
Aboriginal and Torres Strait Islander law is part
Enforcement and sanction within Indigenous societies
of everyday life. The law is an integral part of the values, customs and ethics of Indigenous peoples and has developed over many thousands of
laws. As a result, mediation has an important role in dispute resolution.
years. Most laws relate to marriage, child-rearing,
It is expected that everyone in the community
religion, family and kinship. Customary laws have
will follow and reinforce the traditional laws. In
been passed from generation to generation by
traditional societies, order is maintained through
word of mouth and through ritual. Stories, songs
self-regulation and consensus among family
and dances are used to help people remember the
heads. Elders play an important role in guiding
laws of their group. Different people in the tribe
decisions related to enforcing the law, intervening
know different laws. For example, women have
as necessary.
knowledge of some laws that they pass on to girls at a certain age.
Offences under traditional law may be breaches of sacred law or offences against other persons or
During ceremonial meetings at communal
property. The boundary between these categories
gathering places, laws are passed on by and
is not always clear. Where sacred law has been
to the appropriate people and reinforced often
broken, elders are often directly involved in
through dance and storytelling. Many of these
applying sanctions.
ceremonies are sacred and people from outside
Sanctions vary from place to place. The relatives
the community are not permitted to participate
of the wronged party, ceremonial leaders, or both
or watch. The stories have been handed down for
may be involved in the punishment, the form of
thousands of years and explain things such as the
which may be determined through negotiations
creation of all things, why things happen, tribal
and/or kinship relationships. For the most serious
boundaries, family relationships, cultural practices
offences, elders may need to ensure that the
and forbidden acts.
punishment is appropriately carried out and
kinship family relationships, including all extended family relationships; an important part of Indigenous cultures and values, which dictate how all people in the group behave toward each other
The leg al s y s tem
are not recognised by non-customary law but are
elders older men and women of recognised wisdom and authority, who are the keepers of traditional knowledge within Indigenous communities; they are responsible for such things as initiations and the handing down of punishments when community laws are broken mediation a process in which two parties are brought together for the purpose of discussing and resolving a conflict sanction a penalty or punishment imposed for breaking the law
restraint is exercised.
Dispute resolution within Indigenous societies
to exile, spearing or death. Punishment by death
When customary laws are broken or disputes arise
possibly because of conflict with Australian law.
within traditional Indigenous societies, the family
The justification for physical punishments such as
and the community are involved. Discussions or
spearings or beatings is sometimes expressed as to
meetings, rather than formal judicial processes,
‘restore balance’ for the parties and their families.
Punishments range from ridicule and shaming is much less frequent today than in the past,
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Figure 2.18 4HISMAPISJUSTONEREPRESENTATIONOFMANYOTHERMAPSOURCESTHATAREAVAILABLEFOR!BORIGINAL!USTRALIA5SING PUBLISHEDRESOURCESAVAILABLEBETWEENn THISMAPATTEMPTSTOREPRESENTALLTHELANGUAGEORTRIBALORNATIONGROUPS of the Indigenous people of Australia. It indicates only the general location of larger groupings of people which may include smaller groups such as clans, dialects or individual languages in a group. Boundaries are not intended to be exact. This map is ./435)4!",%&/253%)..!4)6%4)4,%!.$/4(%2,!.$#,!)-3$AVID2(ORTON CREATOR ¥!BORIGINAL3TUDIES0RESS !)!43)3AND!USLIG3INCLAIR +NIGHT -ERZ
mitigation making the severity of an offence or a sentence milder or less severe
46
The significance of land and bodies of water to Indigenous societies
Islander people have links with the sea, lakes, rivers and all bodies of water. These are not owned by individuals, but are cared for by the group under customary law.
The idea of individual land ownership is alien to
Each group has distinct responsibilities govern-
Aboriginal and Torres Strait Islander thought. Being
ing the way that they look after their land and
a member of a tribe means that a person is able
bodies of water. These responsibilities are tied into
to live on and use the resources of certain lands.
their traditional laws and the stories and rituals that
Thus, the land belongs to the group and loss of this
pass on these laws and responsibilities. Failure to
land means losing the tribe’s culture and history.
follow the traditional laws can be seen as a failure to
In the same way, Aboriginal and Torres Strait
show respect for the land and traditional values.
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The relevance of customary law today In the past twenty years there has been greater legal recognition of Aboriginal and Torres Strait Islanders’
The leg al s y s tem
rights as the traditional landholders of Australia. Many aspects of customary law can be seen embodied in Australian law today. The practice of sustainable development, for example, is the basis for current environmental laws. Conciliation and mediation are increasingly used to resolve disputes in criminal, consumer and employment law. Customary laws are also sometimes taken into account when an Aboriginal or Torres Strait Islander is charged with a crime. For example, where an act has been done because Aboriginal customary law requires it, but the act amounts to an offence under Australian law, this may be raised in mitigation of the offence. Evidence that a criminal offence was provoked by the victim’s
Figure 2.19 In Indigenous societies, land belongs to a group and not to individuals.
breaking customary law may also be a mitigating factor, and evidence that an offender is to receive traditional punishment may be submitted in mitigation of a sentence.
R EV I EW 2 . 5 1 Describe the importance
R ESEAR C H 2 . 4 Visit the website
In some places where there are a large number
of tradition in Aboriginal
www.dreamtime.net.au/
of people living a traditional lifestyle, elders will
and Torres Strait Islander
Go to ‘Stories of the Dreaming’
customary law.
and complete the following
be consulted by those involved in maintaining and enforcing the law. However, there is much debate about the role
2 Explain the different relationships that
of customary law in prosecuting, defending and
Europeans and Aboriginal
punishing offenders, and those in the legal system
and Torres Strait Islanders
are always wary of being accused of unfairness if
have with the land.
everyone is not treated equally by the law. As a
3 Why is it not possible
result legislatures have been reluctant to formally
to refer to a uniform
incorporate customary laws into Australian law.
Aboriginal and Torres Strait Islander customary
1 Explain the importance of the Dreaming to Aboriginal and Torres Strait Islander peoples. 2 Identify how Dreaming stories are passed on through generations. 3 Who has custody of these stories? 4 Discuss why many of these
law? 4 What do the laws of Indigenous Australian peoples have in common? 5 Identify some ways in
Figure 2.20 Land Council meeting of the elders, &ITZROY#ROSSING 7! /CTOBER
activities:
stories are called ‘sacred’ and ‘secret’. 5 Look at the list of stories and their summaries and
which customary law is
distinguish the common
relevant to the Australian
themes of many of these
contemporary legal
stories.
system.
6 Choose a story and briefly tell what it is about.
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International law States and sovereignty: The differences between domestic and international law domestic law the law of a nation opinio juris sive necessitatis ,ATIN @OPINIONTHATAN act is necessary by rule of law’: the principle that for the practice of a state to be customary international law, the state must believe that international law requires it
In this sense, international law is different from domestic law. Nation-states are powerful entities and to force a nation-state to take a particular course of action can have far-reaching implications for the international community. As a result
Each country has laws for its own people, known
international law relies on countries consenting to
as domestic law. A country can do this because
cooperate in the enforcement of these laws.
it is an autonomous (independent) state which has
A further point of difference is that law is adhered to not simply because it can be enforced,
sovereignty. A state, in the legal sense, is an independent
but because it is generally accepted by the whole
entity that is recognised by other states on an
community. As the world is made up of diverse
international basis. In order to be a state, a place
cultures with different values, not all countries will
must have:
agree with all international laws and may ignore
s a defined territory
a law if they feel that it is not in their national
s a permanent population
interest to do so.
s an effective government s the
capacity
to
enter
However, nation-states are interdependent into
international
in many ways, and the recognition of this world
negotiations.
community provides one of the motivations for
Sovereignty means that the state has the
following international law.
authority to make rules for its population and the power to enforce these rules. The term ‘state’ can refer to a political division within a federation, such as New South Wales or Tasmania, or (in an
Sources of international law
international context) to an autonomous nation-
The main sources of international law are customs,
state.
treaties, legal decisions and legal writings.
International law governs the relationships
48
between nation-states. International law enables
Customary international law
nations to participate in trade and commerce
Customary international law is not contained
and provides mechanisms for the maintenance of
within a written document. Instead it is based on
peace and security and the reduction of conflict.
long-established traditions or common practices
International law also covers fundamental human
followed by many nations to the point that they are
rights, making it illegal to do such things as torture
accepted as being fair and right by the international
political prisoners or commit genocide.
community. For example, customary international
One of the main criticisms of international
law regulating war had been in existence for a long
law is that it lacks enforcement. There are many
time before the Hague and Geneva Conventions
examples around the world of nation-states
explicitly outlined rules governing the conduct of
breaching international law as result of state
nations when in conflict, such as the manner in
sovereignty, especially in the area of human rights.
which prisoners of war and civilians were to be
International law could not prevent genocide in
treated.
Rwanda in the 1990s and has not prevented crimes
This form of international law develops over
against humanity committed in the Darfur region
time, as it requires ‘constant and uniform’ practice
of Sudan since 2003.
of states in order to be accepted as law. It should
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nation-states accept that the practice is binding upon them. This principle is termed opinio juris sive necessitatis (shortened to opinio juris). Critics of customary international law point out that it can be difficult to establish that it exists, and the time lag involved in its being accepted as law has rendered it secondary to treaties and conventions as a source of international obligations. The number of nations in existence since the end of the First World War has also grown considerably and hence getting consensus has become more problematic. In addition, the rate of change in the world today is rapid and at times requires a more immediate response. For example, what is the most effective means of limiting damage from the economic crisis of 2008? Would customary law or treaties be the more appropriate way of regulating global financial markets? Most of the laws prohibiting crimes against humanity originated as customary international law. Important examples include the condemnation of slavery and genocide.
Treaties and declarations Treaties are the most commonly used source of international law. According to the Vienna Convention on the Law of Treaties (1969), a treaty is an international agreement concluded between states in written form and governed by the guidelines of international law. Another way
Child executions There are still a handful of countries in the world today that execute offenders for crimes committed when they were under the age of 18. It is evident that child executions breach international treaties. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) states that ‘sentence of death shall not be imposed for crimes committed by persons below eighteen years of age’. Article 37 of the Convention on the Rights of the Child (CROC) provides that ‘neither capital punishment nor life imprisonment without possibility of release shall
The leg al s y s tem
practice, it is still not considered law unless the
ca s e s tu d y
be noted that even if there is constant and uniform
be imposed for offences committed by persons below eighteen years of age’. In Roper v Simmons, 543 US 551 (2005), the US Supreme Court held that executing offenders who were minors when they committed the crime violates the Eighth Amendment, which prohibits ‘cruel and unusual punishments’. The court found that standards of decency had evolved since 1989, when it had ruled that the execution of 16- and 17-year-old offenders was constitutional. There was now a national consensus that death is disproportionate punishment for juveniles. In addition to state legislation and practice, the court had also considered international trends. Bodies including the Inter-American Commission on Human Rights and Amnesty International believe that ‘the exclusion of child offenders from the death penalty is now so widely accepted in law and practice that it has become a rule of customary international law’.
of looking at it is that a treaty is an agreement between legal equals and may cover any sphere of international relations between the parties.
its organs and agencies. Each country that is a
Treaties can be either:
signatory to this treaty has a seat in the General
s bilateral – between two nations, for example
Assembly and participates in UN processes.
the Agreement between the Republic of Indonesia
The more nations that sign a treaty, the more
and Australia on the Framework for Security
powerful that treaty will be. Treaties are used to
Cooperation (the ‘Lombok Treaty’), concerning
make specific laws and to control conduct and
their common security and respective national
cooperation between and within nations. A treaty
security; or
may also establish an international organisation,
s multilateral – between many nations, for
as for example the Rome Statute of the International
example the Charter of the United Nations,
Criminal Court. There is no set way of making a
which established the United Nations (UN) and
treaty, but most treaties are made through direct
treaty an international agreement concluded between states in written form and governed by the guidelines of international law; treaties may also be referred to as conventions or covenants.
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Declarations are also international instruments, but they differ from treaties. Declarations state and clarify the parties’ position on particular issues, but do not impose legally binding provisions that must be followed. A famous example is the Universal Declaration of Human Rights. The United Nations Commission on Human Rights was established, following the Second World War and the Holocaust, to draft the declaration – the first universal statement on the basic principles of human rights. Among its chief purposes was to define the meaning of the words ‘fundamental freedoms’ and ‘human rights’, which appear in the UN Charter. In 1948 the declaration was ratified by a proclamation by the United Nations General Assembly. Forty-eight countries voted in favour of it, with none voting against it and only eight abstaining. The declaration is the foundation for two binding UN human rights covenants: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Its principles are contained in other treaties as well.
Legal decisions The International Court of Justice (ICJ), which is part of the United Nations, is the judicial body Figure 2.21 The International Criminal Court in The Hague, The Netherlands
that deals with disputes between states. Many treaties designate the ICJ as the means of resolving disputes that arise under the treaty.
ratify to formally confirm that the country intends to be bound by the treaty
negotiations between nations. If all parties involved
Stare decisis does not apply to decisions of the
agree, the treaty will be signed. A document will
ICJ. According to Article 59 of the Statute of the
only become a treaty if all parties have the intention
International Court of Justice, a decision of this court
declarations formal statements of a party’s position on a particular issue. Declarations are not legally binding under international law.
of being bound by its provisions and obligations
only binds the parties to the particular dispute.
at the time of signing. The treaty only becomes
However, the court considers past rulings in its
binding on a nation when that nation ratifies it –
decisions, and ICJ decisions may help to shape the
that is, confirms that it intends to be bound.
content of treaties.
United Nations a world organisation dedicated to world peace and the sovereignty and equality of all its members
50
For some countries, such as France, treaties
There are other international courts and tribu-
which that country has ratified automatically
nals whose judgments contribute to establishing
become part of the domestic law. Other countries
international law. The International Criminal Court
require domestic legislation to be passed in order
(ICC) and the European Court of Human Rights
for the treaty to be implemented into their law.
(ECHR) are two examples. The ICC was set up
In other cases, whether domestic legislation is
to prosecute the most serious crimes concerning
required will depend on the type of treaty.
the worldwide community; the ECHR is a regional
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rules of international law. Scholarly legal writings
Convention on Human Rights. Specialised courts
may be drawn upon for the purpose of interpreting
have also been set up for particular purposes and
treaties or determining their application in
time-frames, such as war crimes arising from a
international disputes.
specific conflict. Examples of this type of court are
Governments may also seek the advice of
the International Criminal Tribunal for the Former
experts on matters of international law. For
Yugoslavia and the International Criminal Tribunal
example, in 2007 the Sydney Panel of Independent
for Rwanda.
International Legal Experts provided advice to the
The leg al s y s tem
court that rules on violations of the European
Australian government on whether the legality
Legal writings
of Japan’s ‘scientific’ whaling program could be
Due to the changing international political land-
challenged under the Antarctic Treaty System,
scape and the developing nature of international
the International Convention for the Regulation of
law, the writings of respected international law-
Whaling (1946) and two other treaties. Although
yers, judges and academics have an important
commercial whaling has been prohibited since
part to play in guiding decision-making and treaty
1986 for all members of the International Whaling
formation. Along with judicial decisions, scholarly
Commission, Japan has relied on an exemption in
writings are mentioned in Article 38(1)(d) of the
the whaling treaty that permits killing whales for
Statute of the ICJ as a means of determining the
scientific research.
I n t e r n a t i o n a l o r g a n i s a t io n s The United Nations
The UN’s International Law Commission is the body primarily responsible for codifying and
The United Nations is the chief organisation
developing international law. The UN General
involved in international law. It was established
Assembly’s Legal Committee (Sixth Committee)
in 1945 by the Charter of the United Nations. At
receives the Commission’s reports and considers
its first meetings, fifty-one countries were repre-
its recommendations. It may then organise a con-
sented; by 2009, there were 192 members. Its
ference to draw up a convention based on those
main objectives are to maintain global peace
recommendations, that the member countries
and security; to develop friendly relations among
vote upon.
nations based on respect for equal rights and
Critics of the United Nations believe that reform
each nation’s right to govern its own political,
is necessary for its continued relevance. State
economic and social development; and to promote
sovereignty often poses a challenge to the authority
cooperation in solving international problems. The
of the UN, especially in situations involving peace
UN has been central to the protection of human
and security. It has also been suggested that the
rights and to developing a legal framework to
structure of the Security Council should be re-
address terrorism, drug trafficking, the clearing
examined (this will be discussed later). As the UN has
of landmines, and protection of the environment.
no powers to make countries enact its resolutions
It has also been active in concrete efforts to fight
into domestic law or to follow a particular course of
disease, reduce poverty, provide emergency relief
action, it effectiveness is very much dependent on
in natural disasters, and many other humanitarian
the political will of nation-states.
operations.
The main organs of the UN are discussed below.
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The General Assembly meets every year and can meet more often if required.
The Security Council The Security Council is the most powerful part of the UN. It is the executive of the United Nations and has the final say about the security and peacekeeping activities of the General Assembly. The Security Council consists of five permanent members: the United Kingdom, the United States of America, Russia, China and France (countries that were victorious in the Second World War). There are also ten non-permanent members who serve for two years each. Australia has been a member of the Security Council four times since 1945. Under the Charter of the United Nations, it is the Security Council that has primary responsibility for maintaining international peace and security. As such it is able to investigate disputes that could lead to conflict. It can issue economic sanctions against nation-states to persuade them to change their policies, or to prevent or stop aggression. It can also send ‘peacekeeping’ troops from member states into areas where there is conflict, to separate opposing forces and to reduce tension. It may also authorise collective military action. Security Council Resolutions require a unanFigure 2.22 The United Nations Headquarters in New York
imous vote of all five permanent members of the Security Council. If one of the permanent members votes against the resolution then it is not carried.
The General Assembly
This is called the ‘veto power’ and is considered
General Assembly the main body of the United Nations, made up of all of the member nations
The General Assembly is made up of repre-
one of the fundamental weaknesses of the current
sentatives from all member nations and is the
structure of the Security Council. For example,
main forum for multilateral discussion on all
in 2004, the Security Council held continuing
international matters covered by the UN Charter.
discussions to address the humanitarian crisis in
Security Council the arm of the United Nations responsible for maintaining world peace and security
It discusses and makes recommendations on the
the Darfur region of Sudan. There, Arab militias
operation of the UN, on conflicts between nations,
with Sudanese government backing were engaged
and on practical questions regarding political
in a horrific campaign of forcible relocation of
cooperation, human rights and international law.
certain groups (‘ethnic cleansing’) involving rape,
It appoints the non-permanent members of the
murder and torture. China and Russia, which
Security Council and oversees the UN budget. It has
had significant oil interests in Sudan, threatened
established a number of committees, commissions
to veto any Security Council resolution involving
and working groups for particular purposes.
economic sanctions. Resolution 1564, passed
52
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The leg al s y s tem
Figure 2.23 The UN General Assembly
in September, disappointed many human rights
The other main organs of the United Nations are
groups due to the absence of stronger measures
the Economic and Social Council, the Trusteeship
such as an immediate oil embargo and targeted
Council, the Secretariat and the International
sanctions against government officials.
Court of Justice (discussed below).
that having been set up over sixty years ago it does not reflect a broad spectrum of cultural values evident in the world today. For example, it could be argued that the inclusion of a Muslim nation as a permanent member would make it a more representative body.
l eg al l i nks
A further criticism of the Security Council is For more information on these bodies go to www.un.org
Figure 2.24 The UN Security Council controls the UN peacekeeping corps.
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jurisdiction the power of a court to rule on a question
The International Court of Justice
areas. Many IGOs are subsidiary agencies of the
The International Court of Justice (ICJ) is the
decisions about international issues such as
principal judicial organ of the United Nations. It
refugees, tariffs or wealth. The International
was established in 1945 and its main functions
Labour Organization is a UN agency whose aim is
are to settle disputes submitted to it by states
to ensure the safe and fair treatment of workers.
UN; others have been formed to make collective
and to give advisory opinions on legal questions
Regional organisations also play an impor-
submitted by the General Assembly, the Security
tant role in international decision-making. For
Council, or other bodies as permitted by the
example, the European Union is an economic
General Assembly. The ICJ can only hear disputes
and political partnership of European nations that
if the nations involved accept the jurisdiction of
have agreed to cooperate for the common good.
the court.
It has regulatory powers covering areas such as
There are two distinct types of cases upon which the court may rule. The first type is legal
human rights, the environment, economic policies and trade.
disputes (contentious issues) between states, on which the court produces binding rulings. The second type is advisory proceedings,
Figure 2.25 The symbol of the Red Cross
Non-government organisations
in which the General Assembly
Non-government
or
Council
associations based on common interests and aims,
requests the court’s opinion on
which have no connection with any government.
any legal question. Other UN
They make contributions in a wide range of
organs may request advisory
areas, from world peace, disaster relief, and
opinions,
with
environmental protection to promoting education
respect to their own activities.
and alleviating poverty. They do this by informing
Although advisory opinions do
the public and lobbying governments to take action
not have to concern particular
on issues of concern. Examples of international
controversies between states,
NGOs include the Red Cross, Greenpeace and
they often do.
World Vision.
the
Security
but
only
organisations
(NGOs)
are
A well-known human rights NGO is Amnesty
Intergovernmental organisations Intergovernmental
organisations
International. It has an estimated 2.2 million members and subscribers throughout the world. It is independent of any national government: that is, it (IGOs)
are
does not rely on funding from any national govern-
organised groups of nation-states, established
ments. According to its official site (www.amnesty.
to pursue mutual interests in a wide variety of
org), Amnesty International takes action to: s stop violence against women
le g al li nk s
s defend the rights and dignity of those trapped
54
in poverty Go to www.libsci.sc.edu/bob/
s abolish the death penalty
IGOs.htm. This site lists all IGOs
s oppose torture and combat terror with justice
in the world alphabetically,
s free prisoners of conscience
with website addresses.
s protect the rights of refugees and migrants s regulate the global arms trade.
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As discussed earlier, in some countries ratification
treaties regulating the exploration and use of outer
of a treaty automatically makes it part of that
space.
country’s domestic law. This is not the case in Australia. For some treaties, new legislation may be required to implement it in Australian law. For others,
Treaties also influence Australian law in the development of the common law, in judicial review of decisions, and in the judicial interpretation of statutes.
existing federal or state/territory legislation is
Examples of human rights treaties that have
sufficient (in other words, the terms of the conven-
some of their provisions reflected in state or
tion are already being satisfied by domestic law).
territory and/or federal legislation include:
To pass new legislation implementing a treaty,
s International Covenant on Civil and Political
the federal government may rely on the external
Rights (ICCPR) – see for example Human Rights
affairs power in s 51(xxix) of the Constitution. It
Act 2004 (ACT); Charter of Human Rights and
may also rely on other powers, for example the trade and commerce power in s 51(i) if the subject matter involves shipping. International law does not dictate the way in
Responsibilities Act 2006 (Vic) s Convention on the Rights of the Child (CROC) – see for example Family Law Act 1975 (Cth), in particular s 67ZC
which Australia implements the obligations it has
s Convention on the Elimination of All Forms of
under treaties. The preferred method of giving
Discrimination Against Women (CEDAW) – Sex
effect to most treaty obligations is by incorporating
Discrimination Act 1984 (Cth)
the actual text of the treaty provisions into domestic
s Convention Against Torture and Other Cruel,
legislation. For example, the Space Activities Act
Inhuman or Degrading Treatment or Punishment
1998 (Cth) contains provisions from several UN
(CAT) – Crimes (Torture) Act 1988 (Cth).
REVIEW 2.6 1 Explain two different ways that the term ‘state’ can be used.
The leg al s y s tem
Re l eva nce o f i nternat iona l law to Au s t ra l ia n l aw
R ESEAR CH 2 . 5 1 Go to the United Nations
R ESEAR CH 2 . 6 Investigate adversarial and
website: www.un.org.
inquisitorial legal systems. Write
Choose one of the issues that
a report that looks at the origins
‘international law’. Outline the different
the United Nations covers
and workings of adversarial
ways in which international law is made.
(for example human rights).
and inquisitorial legal systems.
3 Why was the United Nations established?
2 Write a report about some of
2 Identify what is meant by the term
Include a comparison of
4 Discuss the limitations of international law.
the recent initiatives taken by
the systems, looking at the
5 Describe the functions of the UN General
the UN in this area.
advantages and disadvantages
Assembly. 6 Explain the importance of the UN Security Council. 7 Outline the role of the International Court of Justice. Discuss its limitations. 8 Identify some organisations that influence international law.
3 Outline any problems that
of each system. You might like
you see the UN facing as it
to look at Indonesia and recent
undertakes these initiatives.
trials that have taken place with respect to terrorist activity and drug smuggling. Come to a conclusion about which system you think is better for Australia.
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C hap te r s u m m a ry M ul t i p l e -c ho i c e q ues ti ons 56
s The Australian Constitution took shape during the process of federation. s The constitutional division of powers outlines the responsibilities of the Commonwealth and the states by reference to concurrent, exclusive and residual powers. s The High Court has the ultimate responsibility for interpreting the Constitution. s The High Court is the final court of appeal IN!USTRALIAITSAPPELLATEJURISDICTION BUTIT ALSOHASORIGINALJURISDICTIONFORSOMEMATTERS notably constitutional law. s The Constitution indicates how the separation of powers operates in Australia. It is IMPORTANTTONOTETHATONLYTHEJUDICIARYIS truly independent in Australia. s The separation of powers ensures that individual rights and the democratic system are protected. s The law in Australia, prior to European settlement, was customary law based on Aboriginal and Torres Strait Islander traditions, rituals and acceptable conduct.
s Customary law still has relevance in Australia today and elements of it have been incorporated into dispute resolution procedures. s Contemporary Australian law is based on English common law and adapted over time to suit modern Australian society. s The Australian Constitution sets out the fundamental rules of Australian law. Parliament has the power to make changes to these laws as long as the correct processes are followed. The government in power at the time will influence changes to the law. s The doctrine of precedent is an element of COMMONLAWWHICHREQUIRESJUDGESTOFOLLOW rulings made in previous court cases, unless they are inconsistent with a higher court’s decision or wrong in law. s Australia is recognised internationally as a sovereign state with the authority to make its own laws. s Australia also takes part in international lawmaking through its membership of the United Nations and by being a signatory of international treaties.
1 Which section of the Constitution outlines the legislative powers of the Commonwealth Government? a S b S c S d S 2 On what grounds would it be unconstitutional FORACURRENT$ISTRICT#OURTJUDGETOBE elected to the House of Representatives? a it offends the division of powers b it offends the separation of powers c it would be ultra vires d it is not allowed under the referendum PROVISIONSOFS 3 Australia does not follow the doctrine of the separation of powers in its pure form because: a Australia does not have a president b members of the executive and the legislature are completely separate c some members of the executive are also members of the legislature d Australia is still a monarchy
4 2EFERRINGTOS WHICHOFTHEFOLLOWING statements is true? a Victoria would be able to produce its own notes and coins. b Queensland is able to pass laws to allow migrants into the state to work in agriculture. c New South Wales is able to legislate to legalise same-sex marriages. d South Australia can build a rail line along its southern coastline. 5 How would the High Court decide a case where a state and the Commonwealth exercising a concurrent power come into conflict? a it would rule in favour of the state as its law was passed first b ITWOULDAPPLYSANDRULEINFAVOUROF the state c ITWOULDAPPLYSANDRULEINFAVOUROF the Commonwealth d it would rule in favour of the Commonwealth because it must act in accordance with the Prime Minister’s wishes
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C ha p t er s um m ary tasks
1 %XPLAINANDJUSTIFYTHEDIFFERENT@CHECKS and balances’ provided by the Australian Constitution. 2 Explain the difference between the ‘division of power’ and the ‘separation of powers’ under the Constitution. 3 Use examples to describe the various roles of the High Court. 4 Class debate: If the Constitution were to be rewritten today, what current state government powers should go directly to the federal government? 5 Explain the difference between common law and statute law. Analyse their relationship. 6 Describe the distinguishing features of Indigenous Australian law.
The leg al s y s tem
6 What is common law? a parliament-made law b JUDGE MADELAW c the legal principles developed in England and followed in Australia d law that resolves disputes between two individuals 7 When is a binding precedent set? a when it is established by a higher court b WHENAJUDGEHASDETERMINEDTHATTHEFACTS of a case are similar to another case c WHENAJUDGEACCEPTSTHEADVICEFROMA JUDGEINAHIGHERCOURT d when parliament passes a law about a case 8 What is the main purpose of equity? a TOACHIEVEJUSTICE b to achieve fairness c to achieve equality d to achieve damages
9
Which of these statements about the Security Council is true? a ITISOPENFORALLCOUNTRIESTOJOIN b it has the authority to send armed forces into countries c it must take the advice of the General Assembly on matters involving peacekeeping d it has limited powers 10 Which of these features does the adversary system involve? a THEUSEOFAJURYINALLCOURTCASES b the payment of damages to the victim of a crime c JUDGESCOLLECTINGEVIDENCE d each side presenting its case and testing the opposition’s evidence
7
Discuss the relationship between the government and the whole parliament when it comes to making new laws or amending current laws. 8 Evaluate the influence of international law on domestic law. 9 %XPLAINTHEJURISDICTIONOFEACHOFTHECOURTS in New South Wales or the Australian Capital Territory. 10 Critically analyse the ways that Indigenous Australian law has been, and can be, incorporated into the contemporary Australian legal system.
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CHAPTER 3
k ey t er m s / v o c ab u l a r y
c hap ter ob j e cti ve s
Classification of law
58
In this chapter, students will: s identify and apply legal concepts and terminology s describe the key features and operation of the Australian and international legal systems s discuss the effectiveness of the legal system in dealing with relevant issues s explain the relationship between the legal system and society s describe the role of the law in conflict resolution and its ability to respond to and initiate change s locate, select and organise legal information from a variety of sources s communicate legal information by using wellstructured responses.
balance of probabilities beyond reasonable doubt burden of proof CIVILJURISDICTION credibility cross-examination damages defendant examination in chief INJUNCTION intellectual property JURY
plaintiff pleadings prima facie private law prosecutor public law specific performance standard of proof the state
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IM PORTA N T L EGIS L AT ION
Australian Constitution Crimes Act 1900 .37 Crimes Act 1900 !#4 Criminal Code 2002 !#4 Judiciary Act 1903 #TH SIGNIFIC AN T C AS ES
Donoghue v Stevenson !# Roach v Electoral Commissioner;=(#!
The leg al s y s tem
rel ev ant l aw
odd l a w 5NDERS!OFTHECrimes Act 1900.37 it is an offence to steal rocks, stones or similar material. This section states: Stealing of rock, stone etc. Whosoever steals: A ANYROCKORROCKS B ANYSTONEORSTONES OR C ANYGRAVEL SOIL SANDORCLAY that is or are in, on or under, or forms or form part of any land shall, on conviction by a Local #OURT BELIABLETOIMPRISONMENTFORMONTHS ORTOPAYAlNEOFPENALTYUNITS ORBOTH
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Pub l i c l a w a n d p r i va t e l a w public law the body of law governing relationships between individuals and the state, and the structure and operation of government ITSELFEGCRIMINAL administrative, and constitutional law) private law the body of law governing relationships between individuals EGCONTRACTLAW TORTS family law and property law)
There are many different ways of classifying law.
Criminal law
One is to separate it into two main categories:
Criminal law is the body of rules under which
public law and private law.
certain acts or omissions are punished by the
Public law is the body of law dealing with
state. Its function is to maintain public safety and
relationships between individuals and the state,
order for the whole of society. The state has this
and with the structure and operation of the
responsibility because an offence is seen as being
government.
against the whole community even if only one
Private law is the body of law governing relationships between individuals – that is, individual citizens but also organisations and companies. Private law is also referred to as civil law.
individual is affected. This is because the offence is seen to damage the moral order of society. In Australia, criminal law is the responsibility of each state. The common law plays a significant role in Australian jurisdictions including New South
Public law
Wales and the ACT, but each state and territory also
Public law deals with the powers and obligations
The actions and punishments covered by these
of government and citizens, and the relationships
laws are the same, or similar, in all states and terri-
between persons and the state. Three main areas
tories as it would be too confusing for everyone
of public law are criminal, administrative, and
involved if what was a major crime in one state
constitutional law.
was not in another. The criminal justice systems of
has its own legislation to cover criminal behaviour.
the states and territories are also similar. In New South Wales, the main criminal statute is the Crimes Act 1900 (NSW). The ACT has both its own Crimes Act 1900 (ACT) and the Criminal Code 2002 (ACT). The Code is the result of the ACT’s adoption of provisions of the Model Criminal Code, a cooperative project between the Commonwealth, state and territory governments to develop more uniform legislation. Parts of these Acts have been reviewed and changed to reflect changes in society. For example, the Crimes Acts have been amended to
l e ga l l i nk s
Figure 3.1 The Supreme Court of New South Wales
cover automobile and computer crimes. As with
Go the following web pages to view the
www.austlii.edu.au/au/legis/nsw/consol_
Crimes Act 1900 (NSW), the Crimes Act
act/ca190082/
1900 (ACT) and the Criminal Code 2002 (ACT) in full:
www.austlii.edu.au/au/legis/act/ consol_act/ca190082/ www.austlii.edu.au/au/legis/act/ consol_act/cc200294/
60
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all areas of law, sections of Acts will always lag
limited to deciding whether or not the decision
behind changes in society due to the speed of
was lawfully, fairly and rationally made. At the
change and the procedures and processes involved
federal level, the Australian Constitution gives
in changing laws.
the High Court jurisdiction to give specified
Administrative law
government officers. The parliament has con-
Administrative law is the area of law that deals with
ferred a similar jurisdiction on the Federal Court
government powers and decisions made by gov-
under section 39B of the Judiciary Act 1903
ernment bodies. It is based on the English model.
(Cth).
Administrative law exists to ensure the account-
Government departments have information
ability of the administrative actions and decisions
about appealing against decisions on their websites.
made by the government and its departments.
In NSW, appeals against government decisions are
Administrative law cannot be used to challenge
heard by the Administrative Decisions Tribunal
all government dealings, for example policy deci-
(ADT), and in the ACT, by the ACT Civil and
sions and the giving of advice. An example of a
Administrative Tribunal.
The leg al s y s tem
remedies against unlawful action by federal
decision that cannot be challenged is an increase that are set up to administer these policy decisions can be challenged under administrative law. In this way, a taxpayer could challenge his or her tax assessment under administrative law, on certain specific grounds. In Australia, administrative law is complicated by the different levels of government. An individual must be aware of which government body was responsible for the action before he or she can challenge it.
l eg al l i nk s
in taxes. However, the actions of the departments Information on the NSW Administrative Decisions Tribunal is at: www.lawlink.nsw.gov.au/lawlink/ adt/ll_adt.nsf/pages/adt_index Information on the ACT Civil and Administrative Tribunal is at: www.acat.act.gov.au/ category.php?id=20
There are three ways in which a person can seek a review of a decision made by a government agency. The avenue taken depends upon the
Constitutional law
nature of the complaint and whether the complaint
Constitutional law is the branch of public law that
is made against a federal or state decision. These
focuses on the rules governing the executive,
avenues are:
legislative and judicial functions of government
s Internal review occurs when a decision made
– that is, the Constitution. The Australian
by a member or officer of an agency is reviewed
Constitution divides legislative power between
by another person in the agency. It can be
the Commonwealth and the states by conferring
sought by requesting the reconsideration of a
on the Commonwealth Parliament the power to
decision or by following set procedures where
make laws with respect to particular topics. It
more formal mechanisms exist.
also specifies that when there are inconsistencies
s External review is review of a decision by a person or body outside the agency that made the decision. This is a more formal system which provides review of the merits of a decision.
between state and Commonwealth legislation, the Commonwealth will prevail. If a law violates the rules contained in the Australian Constitution, the case must go to the
s Judicial review of administrative decisions can
High Court of Australia. The High Court has the role
be provided only by courts, and their role is
of deciding cases of special federal significance,
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including challenges to the constitutional validity
Commissioner [2007] HCA 43. It concerned
of laws. Procedures in this court are similar to
the disqualification of full-time prisoners from
those of other courts in the sense that they are
voting in Commonwealth elections. The history
very formal and the two sides argue their cases,
behind this case was that prior to amendment
usually represented by highly respected barristers.
of the Commonwealth Electoral Act 1918 in 2006,
However, they differ in the following ways:
prisoners serving a sentence of less than three
s Cases are heard by one or more judges (called
years were entitled to vote in elections. The 2006
Justices). Cases involving interpretation of the
amendments took away the right to vote of any
Constitution and those of great public impor-
prisoner serving a sentence.
tance are heard by all seven Justices.
Vickie Lee Roach, a serving prisoner, took the
s Decisions are not given at the end of the
case to the High Court on the ground that the
hearing; they are only delivered after much
Act as amended was unconstitutional. Her team
deliberation.
of lawyers argued that the new law breached
s Each justice makes his or her own decision on
her implied constitutional freedoms of political
cases. When a decision is not unanimous, the
participation and political communication. After
majority decision will prevail.
hearing the case, the majority of the court found
s Decisions of the High Court are binding on all
the amended law to be invalid, but accepted
courts in Australia.
the validity of the previous law, which banned
A recent case that challenged the constitu-
prisoners from voting if they were serving a term
tionality of a statute was that of Roach v Electoral
of three years or more.
Private law The aim of private law is to regulate relationships between individual persons, companies and organisations. Private rights are protected by both statute and common law. When an individual brings a court action against another individual for infringement of his or her private rights, it must be in a court exercising civil jurisdiction and the
civil jurisdiction the power of a court to hear matters involving disputes between private individuals, and to award civil remedies
action is known as a civil proceeding. Three major areas of civil law are contract law, tort law and property law.
damages monetary compensation for harm or loss suffered
Contract law A contract is an agreement, or promise, between two or more parties that is recognised by law. Contract law is concerned with the recognition of this agreement and the actions taken to enforce it. When one of the parties to a contract believes that all or part of the contract has been breached, he or she can bring a legal action in a civil court. Damages are usually the common law remedy available for breach of contract. Damages are Figure 3.2 The Australian Constitution
62
viewed as a substitute for performance of the
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contract – that is, for the other party doing what he or she agreed to do by signing the contract. Thus they are designed to put the plaintiff in the position he or she would have been in if the contract had been performed properly, that is, to compen-
The leg al s y s tem
sate him or her. The amount of compensatory damages is intended simply to provide the plaintiff with the benefits that he or she would have had if the defendant had kept the agreement, not to punish the defendant. The plaintiff may also seek one of the following remedies: s An injunction – this is an order usually directing a party not to do something, e.g. ordering the defendant to cease the conduct breaching the contract. In some cases, an injunction may require the party to do something, e.g. requiring a telephone customer to remove wiring that he or she installed, and that was not authorised by the telephone company. s Specific performance – this is an order
Figure 3.3 A mortgage contract being signed
directing the breaching party to perform the contract in the way specified by the court. It will only be ordered if the amount of damages does
plaintiff to the position he or she was in before the
not provide adequate compensation.
wrong was committed.
In each instance, civil court case procedures
All torts entitle the alleged victim to take legal
are followed, where the offended party must argue
action against the alleged perpetrator in a civil
that a breach of contract has occurred. The level of
court and claim compensation. However, court
court where the case is heard depends on the level
action can be expensive, in terms of both time and
of damages sought.
money, so it is important that plaintiffs take this into account when deciding whether the wrong-
Tort law
doing is worth bringing a case.
Torts are ‘civil wrongs’. The word ‘tort’ comes
There are many different types of torts, all of
from the French word meaning ‘wrong’. Tort cases
which are regulated by statute as well as common
deal with situations in which someone has done
law. They arise from different types of activity and
something to interfere with the rights of someone
include:
else. Another way of putting it is that a tort occurs
s negligence
when someone breaches or fails to fulfil a duty
s nuisance – public and private
that he or she owes to someone.
s trespass to land
Breach of contract is also a civil wrong, but the difference between tort and agreements is that
plaintiff the person who initiates a civil action injunction a court order requiring an individual or organisation to PERFORM ORMORE commonly) not to perform a particular action specific performance an order requiring the defendant to perform the acts that the contract obliged him or her to perform
s false imprisonment s defamation.
with agreements there is already a legal relation-
The case that established the modern tort of
ship between the parties at the time of the wrong,
negligence and that clearly shows the difference
whereas in torts there is no legal relationship prior
between tort law and contract law is ‘the snail in
to the wrong. The law of torts tries to restore the
the bottle’ case.
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ca s e s p a ce
Donoghue v Stevenson (1932) AC 562
suppliers with whom they didn’t have a contract. As May Donoghue did not actually buy the ginger beer and thus had no contractual relationship with the manufacturer, in normal circumstances she would not have been able to sue. Donoghue v Stevenson became
Figure 3.4 A decomposing snail found in ginger ale formed the basis of litigaton.
a landmark decision and formed the basis of the tort of negligence worldwide, not only because of
This case was an appeal by May
from getting into ginger beer
the judgment relating to non-
Donoghue, the plaintiff in the
bottles, and
contractual duty of care, but also
original decision. The defendant’s
because of Lord Atkin’s ‘neighbour
of the bottles before they were
Donoghue then appealed to the
sold to the consumer, including
House of Lords.
clear bottles that would make it
‘[T]here must be, and is, some
easier to inspect.
general conception of relations
The court held that a
giving rise to a duty of care, of
Mrs Donoghue was bought some ginger beer by a friend in
principle’:
the town of Paisley, Scotland.
manufacturer is under a legal duty
which the particular cases found
The ginger beer was in a dark
to the consumer to take reasonable
in the books are but instances ...
glass bottle which prevented
care that the article will not cause
The rule that you are to love your
Mrs Donoghue from seeing the
injury to health.
neighbour becomes, in law, you
contents. Some ginger beer was poured into a glass for her,
Lord Atkin, one of the presiding
must not injure your neighbour;
judges, referred to the precedent
and the lawyer’s question: Who
which she drank. Her friend then
case of Heaven v Pender (1883) 11
is my neighbour? receives a
proceeded to pour the rest of the
QBD 503, which established that
restricted reply. You must take
ginger beer into Mrs Donoghue’s
‘under certain circumstances, one
reasonable care to avoid acts
glass and it was then that a
man may owe a duty to another,
or omissions which you can
decomposing snail came out of
even though there is no contract
reasonably foresee would be likely
the bottle. This made her feel
between them’. He went further
to injure your neighbour. Who,
quite ill, and later she also suffered
than the narrow decision in Heaven,
then, in law, is my neighbour? The
from severe gastroenteritis. Mrs
however, citing obiter dicta of the
answer seems to be – persons who
Donoghue sued David Stevenson
dissenting judge, Brett MR, who
are so closely and directly affected
(the respondent), who was the
extended the notion of a duty of
by my act that I ought reasonably
manufacturer of the ginger beer.
care to anyone in a position where
to have them in contemplation
failing to use ‘care and skill in his
as being so affected when I am
Stevenson had failed in his duty of
conduct … would cause danger of
directing my mind to the acts
care to provide:
injury’.
or omissions that are called in
Mrs Donoghue alleged that
s a system of working his business which would prevent snails
64
s an efficient system of inspection
appeal had succeeded; Mrs
Until Donoghue v Stevenson,
question.’
individuals had no rights against
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Figure 3.5 One of the most important types of property dealt with under property law is real property, that is, the actual land and anything attached to that land.
Property law
One of the most important types of property
Property law is a wide area of law that governs
dealt with under property law is real property. Real
relations involving things and interests that can
property is the actual land and anything attached
be owned and that have a commercial value.
to that land, as opposed to personal property,
These include objects capable of being possessed
which includes everything else.
physically, but also less tangible interests, such
Property rights are legal rights to possess, use or
as shares in a company. The products of creative
benefit from something. A violation of such rights
effort, including text, images, designs, inventions,
often involves breaking the terms of a contract.
computer programs and other intangible objects,
Legal action for breaches of property law can take
are protected by statute and common law
place in either the criminal court or civil court,
governing intellectual property.
depending on the offending action.
prosecutor the person formally conducting legal proceedings against someone accused of a criminal offence; the prosecutor acts on behalf of the state or the Crown defendant the person who is accused of a crime or a civil wrong; in a criminal case, the defendant is also referred to as the accused the state a term that is used to refer to the government and the people that it governs onus the burden or duty of proving the case to the court
C r i m i n a l a n d c i v i l cou r t p rocedu res There are many differences between criminal and
necessary to be familiar with some of these key
civil law court cases. Before discussing criminal
differences and relevant terminology.
and civil court procedures in more depth, it is
Key differences between criminal and civil court proceedings s Criminal cases feature a prosecutor and a defendant.
s Civil cases feature a plaintiff and a defendant.
s In criminal cases, the state brings the case to court.
s In civil cases, an individual or organisation brings the case to court.
s In criminal cases, the onus is on the prosecutor to prove the case.
s In civil cases, the onus is on the plaintiff to prove the case.
s In criminal cases, the standard of proof that applies is that the prosecutor must prove the case beyond reasonable doubt. 4HISISAHIGHERSTANDARDOFPROOFTHANIS required in civil cases.)
s In civil cases, the standard of proof a plaintiff must meet is the balance of probabilities4HISISALOWERSTANDARDOF proof than is needed in criminal cases.)
standard of proof the degree or level of proof required in order for the plaintiff INACIVILCASE OR THEPROSECUTIONINA criminal case) to prove their case beyond reasonable doubt the standard of proof required in a criminal case in order for the PROSECUTIONTHESTATE to obtain a conviction against the accused balance of probabilities the standard of proof required in a civil case in order for a plaintiff to succeed in proving the case against the defendant
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The leg al s y s tem
intellectual property intangible property that has commercial value and can be protected by law, e.g. text, images, designs, inventions and computer programs
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Criminal and civil law can overlap. The victim of a crime whose case has been heard in criminal court may also wish to take the case to civil court to obtain compensation for injuries suffered as a result of the defendant’s conduct. In both cases, however, the legal outcome will be decided according to the adversarial system of trial. This means jury a group of people who listen to all of the evidence in a court case and decide on the verdict
a judge, and sometimes a jury, hears both sides of the case as put forward by representatives of the parties involved. The judge considers the evidence and makes a decision in favour of one of the parties.
Criminal procedure Criminal law proceedings are the legal processes in which a person accused of a crime is prosecuted to secure a conviction and punishment, such as a fine or imprisonment. The two main types of criminal hearings are summary hearings and trial by jury. The type of hearing depends upon the seriousness of the offence that the accused is alleged to have committed, that is, whether it is a summary or indictable offence. Summary offences are relatively minor and include certain traffic offences and offensive behaviour. They are heard and decided by a magis-
REVIEW 3.1 1 Distinguish between public and private law.
trate or judge without a jury. An indictable offence is a serious criminal
2 Outline the differences and similarities
offence and may be heard by a judge and a jury.
between civil and criminal court cases.
Crimes in this category include murder, sexual
3 Outline the role of administrative law. How can an administrative decision of a
assault and malicious wounding. Legislation has been passed to allow some some
government body be challenged?
indictable offences to be prosecuted summarily
4 Which courts can decide questions of
(that is, as summary proceedings) in the Local
constitutional law? What types of questions are in this category? 5 What types of remedies can be sought by the plaintiff if a contract is breached?
Court (NSW) or Magistrates’ Court (ACT). For summary matters in New South Wales, the police themselves may prosecute the case in the Local Court. Not only do the police investigate
6 What is meant by tort law?
crimes and arrest suspects, a specially trained
7 What is property and what is property law
police officer called the police prosecutor repre-
concerned with?
sents the state in court. More serious crimes are prosecuted by the Office of the Director of Public Prosecutions (DPP). In the ACT, the DPP is responsible for prosecuting all criminal matters in both the Magistrates’ Court and Supreme Court. The accused, known as ‘the defendant’, will usually employ a lawyer to represent him or her. Some people may choose to represent themselves, depending on the seriousness of the charges. The case that the accused puts forward is called ‘the defence’. Before an accused person can be tried for an indictable offence, there must be a committal hearing. To have the matter put before a jury the prosecutor must convince the magistrate that there is a sufficiently strong case that the accused
Figure 3.6 *URORSSITINTHECOURTROOMSJURYBOX
66
has committed an indictable offence.
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the seriousness of the offence, and in the Supreme
In criminal cases, the defendant is presumed to be
Court in the ACT. Criminal trials are heard before a
innocent until proven guilty. The burden of proof
jury of twelve people, unless the accused elects to
(the onus) rests on the prosecution, which must
have his or her case heard before a judge alone.
prove beyond reasonable doubt that the accused
The jury’s job is to consider whether there is
has committed the offence with which he or she
enough evidence to convict the accused. The judge
is charged. The prosecution needs to convince
advises the jury and deals with questions of law.
the jury that the crime was committed by the
The jury will consider the evidence provided in a
defendant for the defendant to be found guilty. It is
court case and decide on issues of fact on the basis
the job of the defence to disprove the prosecution’s
of this evidence. In both NSW and the ACT, the
case and provide evidence to show the innocence
jury must come to a unanimous verdict – that is,
of their client. The standard of proof refers to the level of
they must all agree.
proof required in order for the party that has the burden of proof to succeed. In a criminal case, the
Criminal trial process At the start of the trial, the indictment is read to the accused, who may plead guilty or not guilty. The prosecution begins with an opening address, setting out the facts of the case and the evidence that will be presented to prove the defendant’s guilt. Each side then calls witnesses and ‘examines’
standard is ‘beyond reasonable doubt’. This means that to return a guilty verdict, no jury member can have any doubt that the crime was committed by the accused.
examination in chief. Its purpose, for the
or Magistrates’ Court. These courts do not make
prosecution, is to establish facts to prove the case.
use of juries and judges. Rather, a magistrate
For the defence, its purpose is to disprove the
makes the decision. Matters are generally handled
prosecution’s case.
quickly, efficiently and cost-effectively. to
In the Local and Magistrates’ Courts, the law-
examine the witnesses of its opponent, in order
yers and magistrates do not wear traditional
to call into question the opponent’s version of the
robes and solicitors carry out most legal work.
facts, or a witness’s credibility.
The proceedings are less formal than the higher
each
side
credibility trustworthiness, reliability, believability burden of proof the responsibility of a party to prove a case in court standard of proof the level of proof required in order the party that has the burden of proof to succeed
L O C A L A ND M A G I STRATE S’ C O U RTS
Most criminal cases are dealt with by the Local
allows
cross-examination questioning a witness called by the other side, to produce information relevant to one’s case or to call the witness’s credibility into question
Hearings in the different courts
them by asking them questions. This is called
Cross-examination
examination in chief questioning a witness, by the barrister who called that witness
The leg al s y s tem
District or Supreme Court in NSW, depending on
Burden and standard of proof in criminal cases
Trials of indictable matters take place in the
After all of the evidence has been given, each
courts. Many defendants choose to represent
side gives a closing address to the jury. This final
themselves and so argue their case without the
speech draws together the evidence and provides
help of a lawyer.
an argument for that side’s position. It may also answer arguments that could be made by the
C O RO NI A L I NQU ESTS
other side. The judge will then ‘sum up’ the case
A coronial inquest will occur when there is
and instruct the jury on how to go about the task
an unnatural death or an unexplained fire or
of reaching a verdict. The jury goes to another
explosion. The proceedings are more inquisitorial
room to deliberate until a verdict is reached. If the
than normal court proceedings, as the coroner’s
jury returns a verdict of ‘guilty’, sentencing occurs
office will gather all of the evidence. If there is
either at that time, or at a later date determined
evidence that a serious crime has been committed,
by the court.
the coroner will recommend that an indictment be
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issued and the accused will be tried in a court of law in the usual way. C H I L DREN’S C O U RT H E A RI NG S
Children charged with a crime are treated differently by the court system, as immature persons are regarded as having a different degree of responsibility from adults. Conviction by a Children’s Court, even for a serious crime, has less severe consequences than conviction in an ordinary criminal court. Most charges against people under 18 years of age are heard in a special Children’s Court hearing. They are usually heard before a magistrate who specialises in children’s cases and takes reasonable measures to ensure that the child understands the proceedings. The case is heard in a closed court and the public is not allowed to attend. If journalists are present, they are not permitted to publish the identity of the offender. In New South Wales, if the child is under 16 years of age, no conviction is recorded.
Figure 3.7 The Children’s Court on Lonsdale Street in Melbourne, Victoria
Civil procedure Civil proceedings are court actions that are the result of disputes between individuals. Unlike criminal proceedings, they are initiated by individuals
REVIEW 3.2 1 Explain the differences
RESEAR CH 3 . 1 1 Go to the following site: www.
between an indictable offence and a summary offence.
lawlink.nsw.gov.au 2 Who hosts this site? Why was
2 What is the task of the prosecution in a criminal trial?
it set up?
or organisations, rather than the state, and they deal with such matters as breach of contract, property disputes and negligence. The person who initiates the civil action, called ‘the plaintiff’, will start proceedings by issuing a statement of claim
3 Go to ‘Courts and Tribunals’.
or a summons (in the ACT, called an originating
How does it go about this
Imagine that you are doing
application) to the party who has committed the
task?
work experience at the local
breach or the wrong. This party is called ‘the defen-
primary school and have
dant’ and may be an individual or an organisation.
3 Compare and contrast the roles of the prosecution and
to teach Year 6 about the
the defence in a criminal trial.
Local Court. Develop an
The process in a civil claim
internet activity based on the
The statement of claim outlines the facts of the
information on the website.
dispute and the parties involved in the dispute.
4 Describe the role played by a jury. How are they selected? 5 What is a coronial inquest?
There are rules for the way in which it must be
6 Outline the ways in which
‘served’ on the defendant, which must be followed
68
children charged with a crime
strictly. As discussed in Chapter 2, the court that
are protected. Account for
has jurisdiction to decide a civil matter will depend
this protection. Do you think
on the type of claim and the monetary amount
this is reasonable?
involved.
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make a ruling. If the plaintiff is successful, the
will exchange and file with the court, which set
judge will make a decision about the amount of
out the issues that are to be decided by the court,
relief (or compensation) to be given to the plaintiff
are called pleadings. The statement of claim or
by the defendant. This compensation usually
originating application will therefore be the first
takes the form of damages in a monetary form,
pleading in the sequence of the case. There may be
or an injunction, which is a court order prohibiting
many pleadings, alternating between the parties,
specified activities.
over the course of the case.
the plaintiff’s allegations, or admit them but plead
Burden and standard of proof in civil cases
additional facts to counter the effect of admitting
The burden of proof in a civil
them. A defendant may also file a counterclaim
case is on the injured party
against the plaintiff.
(the plaintiff) to prove his
The defendant responds with a statement of defence. This statement may deny or challenge
At this stage, the parties are able to obtain
or her allegations. The rules
more information about each other’s arguments
of civil procedure give the
through a process called ‘discovery’. This process
defendant the opportunity
allows each party to obtain information to assist
to submit evidence to rebut
them in responding to the other party’s claims and
the plaintiff’s case. To rebut
allegations. Interrogatories are written questions
generally means to disprove
submitted to the other party, which must be
a statement or evidence pre-
answered. They must be relevant to a matter in
sented by another.
question. At this point, many civil disputes are
In civil cases, the standard
resolved. In most cases legal practitioners prepare
of proof is ‘on the balance
the documents, as they have an understanding of
of probabilities’. This means
the processes and can give appropriate and timely
that the plaintiff, who has
advice on legal matters.
the burden of proof, must
If the dispute cannot be settled, the matter will
prove that it was more prob-
be referred to trial. During the trial, each side has
able than not that he or she
the right to produce evidence, call witnesses and
suffered injury or loss as a
carry out cross-examinations. When both sides
result of the actions of the
have presented all evidence, the judge or jury will
defendant.
pleadings written statements of the parties to a civil dispute that set out the issues to be decided by the court
R EVI EW 3 . 3 1 Draw a flow diagram showing the steps taken in civil legal action. 2 How would you decide in which court to bring a personal injury claim for negligence that resulted
The leg al s y s tem
The documents that the defendant and plaintiff
in medical bills of $100 000? 3 What sorts of facts might be sought in discovery in a case involving a debt that was not paid? 4 Decide whether the following cases involve criminal law or civil law. a You are held up at knifepoint and your mobile phone is stolen. b A man trips over a box on the supermarket floor and breaks an ankle. c A woman is convicted of driving with a blood alcohol level of 0.08. d Your friend is caught with marijuana. e You find a cockroach in a salad you just ordered in a restaurant. f A neighbour’s music at 3 a.m. every night wakes you up constantly. 5 Is it more difficult to prove a case in criminal law or civil law? Why? 6 With a classmate, make a poster (either by drawing or cutting out pictures) showing as many civil wrongs and criminal acts as you
Figure 3.8 $OESSMOKINGMARIJUANAINVOLVECRIMINALLAWORCIVILLAW
can. Draw up a table to list these.
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Understanding criminal and civil cases
2 Reading about cases online Accessing cases online is one of the most timeefficient ways of collecting information about
There are a number of ways in which you can gain a
criminal and civil cases. Two reliable sites to visit
better understanding and appreciation of the oper-
are www.legalaid.nsw.gov.au (look under ‘Links’)
ation of criminal and civil law. This can be done
and
by:
resources’). Both of these sites have information
1 Compiling a media file
about rulings on a wide variety of court cases.
Keeping a record of specific cases that are reported
3 Observation
in the media is an excellent method for building a
Observing a court case in action is an important
sound understanding of criminal and civil cases.
way of reinforcing and extending your knowledge
In order to help you record and summarise your
of criminal and civil law. The Lawlink NSW website
findings, a Media File pro forma is provided for
(www.lawlink.nsw.gov.au) lists all courts in NSW,
you on the Student CD. It’s recommended that
and information about ACT courts can be found
you print a number of copies of this pro forma,
at www.courts.act.gov.au. Students are able to
make notes specific to each case and attach them
visit most courts that are open to the general
to each article you collect.
public. However, if a school group is thinking about
www.lawlink.nsw.gov.au
(under
‘Legal
attending a court, it is important to contact the court to ensure that correct protocols and etiquette can be followed.
The lega l profession Court cases involve a number of participants. Some
role. The official and unofficial participants of most
of these people play an official legal role in the
court cases are outlined below. The red numbers in
court proceedings, while others play an unofficial
the text correspond to the numbers in Figure 3.9.
3
1
6
5
4
7
4
4
2
4
Figure 3.9 Court cases involve a number of participants.
70
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Legal professionals
4
Barristers and solicitors
People seeking legal advice will usually contact a
Judges and magistrates
solicitor first. Solicitors give legal advice to people
Judges and magistrates preside over court cases.
on a wide range of legal issues. They have completed
They are seen as the umpires of court cases,
a recognised law course and carried out relevant
making sure that the rules are followed and that
work experience to achieve their qualification.
a fair trial is carried out. They are legally qualified
Solicitors may work in any of a number of
professionals who have considerable experience in
practice areas. Some of the major areas of employ-
the law.
ment are family law, conveyancing for real estate
Judges sit in intermediate and superior courts
transactions, and the preparation of wills and con-
(District and Supreme courts). The role of the
tracts. Traditionally, only barristers could represent
judge is to adjudicate in cases: the judge makes
parties in court. Solicitors will most often prepare
decisions about points of law and gives instructions
a brief for a barrister when a case must go before a
to the jury to make sure that they understand the
court, as well as doing research and providing legal
proceedings and evidence presented. The judge is
advice. In the Local or Magistrates’ Court, however,
required to hand down sentences and rulings. In
it is more common to see solicitors appearing
civil cases, particularly civil cases, the judge will
on behalf of clients. For each state and territory,
sit without a jury and therefore is responsible for
there are separate associations for solicitors and
the final decision.
barristers, and in NSW, barristers and solicitors are
A magistrate is in charge of a lower court. After
issued different practising certificates.
hearing both sides of the case, the magistrate will
Barristers often specialise in one area of law
decide whether a person is guilty or innocent.
(e.g. family law), which allows them to develop a
The magistrate will decide on the punishment in
depth of knowledge and expertise in the area.
criminal cases, and the amount of money awarded in civil cases.
Solicitors will generally approach a barrister on behalf of their client. The barrister will then
Magistrates will refer very serious criminal
represent the client in either a criminal or civil
offences to the District Court (in NSW) or to the
court proceeding. Barristers have two main roles
Supreme Court (in the ACT). The magistrate
in court proceedings:
will hear some indictable matters to determine
s To provide legal advice on the likely outcome
whether such a matter should go to trial. If there is
of a court case, based on the facts provided to
enough evidence to establish a prima facie case,
them by their client. This allows the client to
and thus justify the expense of a trial, it will be
decide which course of action is best.
referred to a higher court. 2
Judge’s associate
The leg al s y s tem
1
s To present their client’s case in court. 5
Witness
The judge’s associate is a confidential secretary to
A witness gives evidence to support the case in
the judge and is a clerk of the court in which the
court. Both parties can call witnesses. A witness
judge is presiding. He or she generally has a law
must stay outside the courtroom until his or her
degree.
name is called. When they are called they must
prima facie ,ATIN @ONTHEFACE at first sight: having sufficient evidence established against a defendant to warrant a trial in a higher court of law
take the witness stand and swear an oath or make 3
Tipstaff
an affirmation to tell the truth.
A tipstaff supports the judge in procedural and organisational matters when court is in session.
6
Court officer
When court is not in session, the tipstaff may
The court officer organises the court lists and calls
provide research and administrative support.
witnesses into the courtroom. He or she administers
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the oath or affirmation, ensures that the public are seated in the right areas, and announces the arrival and departure of the judge or judges. The court officer communicates questions from jurors to the judge and passes documents from the bar table to the associate, who passes them to the judge, jury or witnesses. He or she also advises the judge’s associate when the jury is ready to return a verdict, operates audiovisual equipment where necessary, gives instructions to the jury and answers questions from jurors, and looks after the jury room and the comfort of the jurors. 7
Court reporter
All court proceedings are recorded, either in shorthand or using a shorthand machine, or in audio and/
Figure 3.10 The media, following a high profile court case
or visual form. A transcript of the proceedings is an accurate written record of what has been said.
selection of the entire panel of jurors, or individual jurors. ‘Challenges for cause’ are based on the
Other participants
person not being qualified to serve on a jury, being ineligible or disqualified, or being suspected
Corrective services officer
of bias. Both sides can also exercise a certain
A corrective services officer is required to guard
number of ‘peremptory challenges’ of prospective
the accused in a criminal case and escort that
jurors, without having to give a reason. However,
person to and from the courtroom.
challenging the selection of a juror can be difficult: neither side knows anything about them in
Jury
advance apart from their names, and peremptory
A jury is a panel of citizens, selected at random,
challenges are usually based on nothing more
who consider the evidence and decide on questions
than name or appearance (e.g. age, gender, race,
raised in the case. Their job can be described as
clothing, physique).
‘fact-finding’, and their decision is called a verdict. Before a court case begins, they are sworn in.
RE VIE W 3.4 1 Outline the role of a judge or magistrate in court proceedings. 2 What forms of legal
In most cases, a criminal trial
The person who brings a civil action against some-
involves a jury of 12 people. Civil
one else is called the plaintiff, while the person
cases may be heard by a judge
who must defend his or her actions is called the
alone or (in NSW) with a jury of
defendant. In a criminal trial, the defendant is
four people.
the person accused of the crime, and there is no
The members of a jury are
plaintiff.
ordinary citizens selected at ran-
representation are available to
dom from the jury list, which is
Media
a person who is having legal
compiled from the electoral roll.
The media often attend high-profile court cases in
problems? 3 Compare and contrast the roles of the judge and the jury.
72
Plaintiffs and defendants
In a criminal trial, both the
order to report on them. Generally, representatives
prosecution and the defence have
from the media sit in the media gallery or wait
the right to challenge either the
outside the court in order to interview people.
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Co m m o n a n d c i v i l l a w s ys te m s Most countries throughout the world use a system
law governing relationships between private
of law based on the common and civil principles of
individuals, in contrast to the criminal law.
Civil law has its origins in Roman law. It is a codified system that uses a set of rules (known as the code of law) that are applied and interpreted
Civil law systems in other countries The term ‘civil law’ sometimes causes confusion.
by judges. This form of legal system is still used in
In the Australian legal system it refers to private
many countries of the world.
law (i.e. disputes between individuals). However,
Common law, on the other hand, was developed
the term ‘civil law’ also describes the legal systems
by custom. It began long before there were any
of those countries that have developed from the
written laws but continued to be applied by courts
Roman law system instead of the English common
long after written laws came into use.
law system.
The main difference between the two systems is
Today, countries such as France, Germany and
that in civil law, judges apply the rules in the code
Italy are civil law countries. Civil law countries
of law to the various cases before them, whereas
usually have an inquisitorial system of trial as
in common law, the rules are derived in part from
opposed to the common law adversarial system.
specific court rulings.
In an inquisitorial system of trial, the judge collects
In countries that have a legal system based on common law, civil law refers to the area of
Figure 3.11 The ruins of the Forum Romanum2OMAN &ORUM
The leg al s y s tem
law – or a combination of both.
the evidence for both sides in a dispute, and is actively involved in the fact-finding task.
Figure 3.12 Common law in Australia has its origins in customary law developed in England. This image shows Queen Elizabeth I in the Court of King’s Bench – the highest COMMONLAWCOURTIN%NGLANDUNTIL
Figure 3.13 The Palazzo della Consulta, seat of the Italian Constitutional Court, DESIGNEDBY&ERDINANDO&UGA
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Ch a p te r s u m m a ry M ul ti p l e- c hoi ce q ues ti ons 74
s The law is divided into public and private law. There are differences in the ways that infringements of public and private law are dealt with by the courts. s Public law governs relationships between individuals and the state and includes criminal, administrative and constitutional law. s The Australian Constitution sets out the foundational rules of Australian government. Constitutional law governs any changes made to these laws. s Private law governs relationships between individuals or between them and organisations or companies. It includes contract, tort and property law.
1 Why is criminal law prosecuted by the state rather than by individual citizens? a Victims of crime are usually unable to afford legal representation. b Crime is considered a wrong against us all and thus a matter of public law. c Crime is often due to government decisions or policy and the state must take responsibility for it. d It is a matter of organisation and thus is a subset of administrative law. 2 What is the main purpose of administrative law? a TOACHIEVEJUSTICEINCIVILCASES b to ensure fairness in government decisions c to allow people to bring criminal charges against government departments d to allow people to receive damages in civil cases 3 What is the High Court’s role in relation to the laws made by parliament? a to decide whether they are consistent with the Australian Constitution b to exercise veto power if necessary, when a bill comes before parliament c to ensure that they are consistent with international treaties that Australia has signed d to advise the minor parties on how they can get laws passed
s The court where the case is heard will depend on such things as the severity of the crime in criminal cases and the amount of damages sought in civil cases. s Criminal and civil court procedures are different in a number of ways. In a criminal trial, the prosecution has the burden of proof. In a civil matter, the plaintiff has the burden of proof. s The standard of proof in a criminal trial is beyond reasonable doubt. In a civil hearing, it is on the balance of probabilities. s Contemporary Australian law is based on English common law. Many other countries use the civil law system, which is based on a statutory code rather than on precedent.
4 What can a plaintiff expect from a successful tort claim? a compensation from the defendant in the form of damages b compensation from the state c ANINJUNCTIONTOPREVENTTHEDEFENDANT from approaching the plaintiff’s solicitor d an order of specific performance 5 Which of these statements about the burden and standard of proof is true? a The defence in a criminal trial must prove that the defendant is innocent, beyond reasonable doubt. b The defendant in a civil trial must prove that the plaintiff’s case is flawed, on the balance of probabilities. c The plaintiff in a civil trial must prove his or her case on the balance of probabilities. d The plaintiff in a civil trial must prove that the defendant is guilty beyond reasonable doubt.
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The leg al s y s tem
Ch a p te r s u m m a ry ta s k s
1 Outline the main ways that a person can seek a remedy if a government decision is unfair. $OYOUTHINKMANYPEOPLESEEKJUSTICEINTHIS WAY *USTIFYYOURANSWER 2 What remedies are available when you have a contract for services and the other party fails to do what they agreed to do? 3 What is tort law? Discuss the idea that tort law has turned us into a society that sues each other when things go wrong. 4 Explain the roles of prosecution and defence in a criminal case. 5 Compare and contrast the features of criminal and civil law.
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CHAPTER 4
ke y t e r m s/ v o c a b ul ar y
c hap ter ob j e cti ve s
Law reform
76
In this chapter, students will: s discuss legal concepts and terminology with respect to law reform s debate the legal system’s ability to address issues in society that may contribute to law reform s discuss the relationship that exists between the legal system and the society in which it operates s discuss the place of the law in addressing and responding to change s identify and assess the conditions in society that contribute to law reform s describe and evaluate the role and operation of agencies and agents involved in law reform.
Apprehended Domestic 6IOLENCE/RDER!$6/ balance of power capital punishment de facto relationship forensic fraud Hansard HUNGJURY
identity theft precedent public morality social values terms of reference 9OUTH*USTICE#ONFERENCES
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IM PORTA N T L EGIS L AT ION
Marriage Act 1961 #TH Property (Relationships) Act 1984 .37 Crimes (Forensic Procedures) !CT.37 Crimes Act 1900.37 Young Offenders Act 1997.37 Crimes (Domestic and Personal Violence) Act .37 Australian Law Reform Commission Act 1996 #TH Law Reform Commission Act 1967 .37 Jury Act 1977 .37 Family Law Act 1975 #TH
The leg al s y s tem
rel ev ant l aw
odd l a w The Commonwealth and all states and territories except the ACT, which is land-locked, have passed similar statutes, each of which is titled the Crimes at Sea Act. These Acts allow the federal and state governments to enter into a cooperative agreement to divide up responsibility for enforcing the law relating to CRIMESCOMMITTEDATSEA*URISDICTIONDEPENDS on the part of the sea where the crime was committed. Although some states have passed laws allowing a defendant to be convicted ONTHEBASISOFAMAJORITYJURYVERDICT THISIS not permitted in any areas of the sea where THE#OMMONWEALTHHASJURISDICTION BECAUSE only unanimous verdicts are constitutionally permitted where the offence is against federal law: Cheatle v R ;=(#!
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W h a t i s l aw r e f o r m? Australian society is constantly evolving and
Changes to laws should not only recognise
changing. Given the speed at which social values
the changes taking place in society, but should
change, the law can sometimes seem anachron-
reflect those changes which have produced better
istic, or slow to respond. The saying often quoted is
circumstances for significant portions of society,
‘Society moves ahead and the law limps behind’.
as well as providing protections against harm.
As suggested in previous chapters, the law
However, law reform is not always smooth or
needs to be similarly dynamic in order for the
easy, as not all members of society may agree with
community to respect and follow it. But mere
particular changes to the law or see the need for
change is not enough to constitute ‘reform’. As the
them. The extent of disagreement often depends
Hon Justice Michael Kirby, a former member of the
on the conditions that gave rise to law reform: in
High Court Bench, wrote:
other words, on what is driving the need to reform
In our language, the word ‘reform’ tends to connote an improvement, an advance: not just for change, a change for the better. M.D. Kirby, Reform the Law: Essays on the renewal of the Australian legal system /XFORD
the law. This chapter examines the conditions that give rise to law reform, and the agents and mechanisms that can bring it about once the reform needed has been identified.
5NIVERSITY0RESS -ELBOURNE P
Co n d i t i o n s t h a t g i ve r i s e t o l aw reform Changing social values Social values are standards or principles that guide people in their thinking about aspects of their society and that are underpinned by beliefs about right and wrong. Social values are not necessarily the same as individual values, but they both influence and are influenced by individuals’ judgment. Both individual and social values and ethics are shaped by various cultural factors, often including religion. When the majority of people within a society hold similar views about an issue, the views can be said to reflect public morality. The law must reflect the social values of the majority of the community if it is to stay relevant and be assured Figure 4.1 Historically, social values in Australia have been heavily influenced by the Christian faith.
78
of a high rate of compliance. As Australia is a diverse multicultural society, it can sometimes be
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in de facto relationships. At this time there
indeed there is anything approaching consensus
were calls to recognise same-sex couples in the
on an issue.
same way. After some impassioned speeches
The problem for lawmakers is that public
in both houses of the NSW Parliament, the De
morality is not static; it continues to evolve. These
Facto Relationships Act was amended to include
changing social values are an impetus for law
same-sex couples and was renamed the Property
reform. There are many examples of legislation
(Relationships) Act 1984 (NSW).
that has been introduced, repealed or amended
Under this Act, factors for a court to consider
after courts have handed down decisions. Judicial
when determining whether a couple are in a de
decisions are one way in which legislators and
facto relationship include the duration of the
others recognise that the existing law no longer
relationship, how long they have lived together,
reflects the community’s social values. In most
whether it is a sexual relationship, and their
cases, as indicated above, the law usually lags
financial dependence or interdependence. Impor-
behind changes in social values. This is not always
tantly, these factors also include the degree of
a negative feature of the law, as deliberate and
mutual commitment to a shared bond and whether
well-thought-out changes to our laws take time.
they are publicly recognised as a couple. While
The following example demonstrates how law
this Act gave couples in these relationships certain
reform has been a direct response to changing
property rights, it also recognised the legitimacy
social values.
and value of their relationship.
social values ethical standards that guide people in their thinking about aspects of their society public morality standards of behaviour generally agreed upon by the community de facto relationship FROMTHE,ATINTERM meaning ‘existing in fact’): a relationship between two adults who are not married but are living together as a couple
The leg al s y s tem
difficult to gauge the mood of the community, if
Changing social values regarding same-sex relationships Many of Australia’s social values have been influenced by its Christian traditions, including the belief that the family is one of the cornerstones of a stable society. Part of the traditional belief has been the understanding that a family must have a mother and a father in a heterosexual relationship recognised formally by religious ceremony and legally by marriage legislation – currently the Marriage Act 1961 (Cth). Over the past 40 years, the idea of what constitutes a family has evolved to the point where the definition above no longer reflects the social values of a significant number of Australians. Moreover, many Australians in same-sex rela-
Figure 4.2 Part of a protest for same-sex couples
tionships were living together without the legal protections afforded to people living in hetero-
Further legislative change occurred with the
sexual relationships. This meant that they had
Property (Relationships) Legislation Amendment
few rights – especially property rights – if the
Act 1999 (NSW), which amended 25 other Acts
relationship ended.
whose provisions excluded same-sex couples.
In 1984, the New South Wales government
For example, it amended the Wills, Probate and
passed the De Facto Relationships Act 1984 (NSW),
Administration Act 1898 (NSW) to give a de facto
which established certain rights for people living
spouse of a person who died without a will the
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estate all of the property that a person leaves upon death
same rights as a husband or wife with respect to It is estimated that there are approximately
no talk in politics of amending the Marriage Act
capital punishment the practice of sentencing a person TODEATHBYJUDICIAL process; also referred to as the ‘death penalty’
100 federal Acts that discriminate against same-
to allow same-sex marriages. The federal govern-
sex couples. The Rudd government has indicated
ment has consistently refused to consider this
an intention to pass legislation to remove discri-
reform. It seems that marriage is one area where
minatory legislative provisions. This will mean
members of government do not believe that the
that same sex-couples will have the same status
public has shifted far enough in their thinking to
as heterosexual de facto couples at both state and
warrant legislative reform.
the deceased person’s estate.
An interesting question to ponder given the legislative changes at state level is why is there little or
ca s e s tu d y
federal levels.
Whose social values should prevail? In California, same sex-marriages were
Same-Sex Marriage’, the BBC reported:
recognised when the Supreme Court
‘The referendum called for the California
of that state ruled in May 2008 that
constitution to be amended by adding
legislation banning these marriages was
the phrase: “Only marriage between a
discriminatory and violated the state
man and a woman is valid or recognised in
constitution. Since then there have been
California.”’
many couples who have legitimised their
The state’s Attorney General has stated
relationships in the eyes of the law through
that those marriages conducted after the
marriage.
court ruling will remain valid.
In November 2008, voters overturned
Public morality is not clear-cut on this
the court ruling by agreeing through
issue in California. With legal challenges
referendum to change the state’s
expected to follow the referendum result,
constitution in a ballot called ‘Proposition
it may be some time before there is
8’. In an article titled ‘California Bans
certainty in this area.
R EV I EW 4 . 1 1 Outline the sequence of events that led to the Property (Relationships) Legislation Amendment Act 1999 (NSW). What did that Act accomplish? 2 What are some other types of social changes that might lead to law reform? How might the reform be accomplished?
Figure 4.3 !MERICANSPROTESTINGFOR0ROPOSITIONONGAYMARRIAGE
80
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Youth Justice Conferences meetings of all the people who may be affected by a crime committed by a young offender; used to help them to accept responsibility for their actions while avoiding the court system
When the law is unable to deliver just outcomes to individuals and the community, there may be a need for law reform. For example, if the criminal law is failing victims,
the
community
and/or
the
accused, new concepts of justice may need to be formulated.
Figure 4.4 Capital punishment, now abolished in Australia, was once seen as a way of dealing with the most heinous of crimes.
In the past, capital punishment for particular murder offences was seen as the
a greater emphasis on rehabilitation, and
R ESEA RC H 4 . 1
most effective way of dealing with the most
because deterrence clearly was not being
Go the following websites to
heinous crimes. It was a case of society
achieved, capital punishment no longer
research law reform in the
delivering pure retribution for a crime: ‘a
served the community’s purposes.
areas outlined.
life for a life’. It was also suggested that
Another notable example of changes in
it provided a strong deterrent to those
the way the law punishes offenders can be
work and assess whether they
disposed to commit murder. In fact, in
seen in Youth Justice Conferences estab-
are an improvement on the
a significant number of homicides the
lished under the Young Offenders Act 1997
previous ways in which the law
offender and the victim knew each other,
(NSW). This is discussed in more detail in
dealt with these issues.
and many involved extreme breakdown of
Chapter 9. Youth Justice Conferences are an
family relationships. Many murderers could
attempt to divert young first-time offend-
be described as one-time killers unlikely
ers away from the court system and hence
to reoffend. When capital punishment
a criminal record. Their aim is to act as a
was abolished in each of the Australian
‘circuit breaker’ in a young person’s behav-
states, the murder rate remained relatively
iour trajectory. A conference may involve
unchanged, suggesting that as a form of
members of the community, the offender’s
punishment it had little deterrent value.
family, the victim and his or her family, and
Identify how the initiatives
C I RC L E SE N T E N C IN G
www.aic.gov.au/topics/ indigenous/interventions/ alternatives/circle.html www.austlii.edu.au/au/ journals/AILR/2004/16.html www.abc.net.au/news/ stories/2008/07/16/2305266.
It was also recognised that, whatever
professionals such as a social worker. Youth
the chances of a criminal’s rehabilitation,
Justice Conferencing has enjoyed support
executing him or her extinguishes the
from the community, as it has achieved posi-
NSW DRU G C O U RT
possibility completely. There are very
tive results for young first-time offenders.
www.lawlink.nsw.gov.au/
strong arguments that capital punishment
Some have argued that it should be used for
drugcrt
violates prohibitions of cruel, inhuman and
a wider range of offences, including serious
htm
www.aic.gov.au/conferences/
degrading punishments in international
offences, because it obliges the young
evaluation/freeman.pdf
human rights treaties, and that where it
person to consider the consequences of his
E NFO RC EM E N T O F
exists, it is imposed more often on poor,
or her actions, in particular the harm caused
PA RE NTI NG O R D E R S
uneducated
to the victim.
www.spig.clara.net/reform/au-
and
otherwise
vulnerable
persons. In addition, there is the risk of
Other law reform initiatives to address
n-99.htm
new concepts of justice include circle
www.legalaid.nsw.gov.au/
As a result of these moral arguments and
sentencing for Indigenous offenders, the
data/portal/00000005/public/
practical considerations, social attitudes
NSW Drug Court and the enforcement
09409001091593851562.doc
with respect to capital punishment shifted
of parenting orders in the Family Court,
and no Australian jurisdiction now permits
to name a few. All of these reforms are
it. Because the concept of what justice
attempts to deal with issues that the current
requires shifted from pure retribution to
laws were clearly failing to address.
killing an innocent person.
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The leg al s y s tem
New concepts of justice
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ca s e s tu d y
New concepts of justice to combat domestic violence Domestic violence is different from violence
introducing the concept of an Apprehended
perpetrated on the street, in schools or in the
Domestic Violence Order (ADVO). ADVOs
workplace. The Women’s Action Alliance defines
could be obtained by victims through the Local
domestic violence as ‘violence occurring within a
Court or the police. The court must be satisfied
household or between family members. Its most
‘on the balance of probabilities’ that the person
common form is violence by a husband against
has reasonable grounds for fear – a lower
a wife (legal or de facto) but it can also include
standard of proof than ‘beyond reasonable
violence by wife against a husband or child
doubt’. An ADVO can be tailored to suit the
against parent. Violence by parent against child
victim’s situation; for example it can forbid
is more commonly referred to as child abuse’.
the accused from coming close to the victim’s
Domestic violence can be manifested
children, residence, place of work, or another
sexually, physically or verbally and in most cases
specified place that the victim frequents. It is a
causes psychological harm to the victim. Victims
criminal offence to breach an ADVO.
of domestic violence are usually isolated socially
As more became understood about the
and they often stay in these relationships for
perpetrators and circumstances of domestic
many reasons, including fear of reprisal.
violence, significant law reform continued to
In the past, victims of domestic violence had
unfold. Some of these developments have
to report an incident to the local police. In many
included:
cases the victim was told that this was a private
s The Crimes (Domestic Violence) Amendment
matter more appropriately sorted out within
Act 1993 (NSW) – allowed police to apply
the family. Research has indicated that the initial
for interim ADVOs after hours by telephone,
response of the police to a victim’s report of
as well as making it an offence to ‘stalk’ or
domestic violence will determine whether that victim proceeds further with the complaint. The victim also had to rely on assault
‘intimidate’ a person. s The Crimes Amendment (Apprehended Violence) Act 1999 (NSW) – distinguished
provisions under the relevant criminal
between orders taken out for domestic
legislation. Not only were there often delays in
violence and those relating to ‘personal
bringing the matter to court, but the necessity
violence’ in other situations, such as disputes
of proving the charge beyond reasonable doubt
between neighbours. In addition, the police
could be a high hurdle when the evidence was
must record in writing why they did not
essentially one person’s word against another’s.
proceed with criminal charges for a breach of
Victims of domestic violence incidents had
an ADVO.
inadequate protection under the law and it was clear that the legislation was not sufficient.
s Amendments to the Bail Act 1978 (NSW) – removed the presumption that bail will be granted in relation to domestic violence
82
LEGISLATION
offences or breaching an ADVO, where the
In New South Wales, the Crimes (Domestic
defendant has a history of violence.
Violence) Amendment Act 1982 (NSW) inserted
s Amendments to the Firearms Act 1989 (NSW)
new provisions into the Crimes Act 1900 (NSW),
– allowed police to seize any firearms present
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conditions and begin targeted case management
violence incident.
processes focusing on protection. Upon arriving
After 30 years of amendments to various
at the scene of an incident, they can, with the
legislation, especially the Crimes Act, it was felt
consent of the victim, use video and still-image
that the crime of domestic violence deserved
cameras to photograph the scene and any
a stand-alone Act of Parliament. Hence the
injuries, and record any witness statements.
Crimes (Domestic and Personal Violence) Act 2007 (NSW) was passed and took effect in 2008. This Act repealed Part 15A of the Crimes
Thereafter, weekly meetings with representatives from welfare agencies, the Local Court, the Department of Community Services
Act, which dealt with apprehended violence
and the police are scheduled, to assist the victim
orders, and re-enacted those provisions as a
and ensure that his or her needs are met. The
new Act, with some modifications and additional
Office of the Director of Public Prosecutions will
provisions. It was also felt that domestic
also provide a prosecutor specifically trained
violence was treated as a lesser crime, hidden
in the legal and social issues associated with
in the Crimes Act. Under the new Act a person
domestic violence cases, who will handle the case
may be charged with a ‘domestic violence
from start to finish. Each cases is to be finalised
offence’. While the acts constituting such an
within 12 weeks, in an effort to minimise the
offence are not new, being charged with the
stress and trauma on the victim and any children.
criminal acts under the new name has significant
The DVICM also offers support to offenders
implications for bail, the offender’s criminal
to assist with their own psychological and social
record and any future convictions.
difficulties. Police and correction officers are
Under s 38, an ADVO made to protect an
Apprehended Domestic Violence Order (ADVO) a court order used for the protection of a person involved in an intimate, spousal or de facto relationship
T he leg al s y s tem
when called to the scene of a domestic
involved in the process.
adult must automatically include any children
The photographic evidence has been
living with that adult, unless sufficient reasons
credited with an increase in guilty pleas by
are given are to why they should be left off.
offenders, from 50% in 2004 to approximately 63% by 2006.
ADDITIONAL DOMESTIC VIOLENCE
While an increase in financial resources, as
INITIATIVES IN NEW SOUTH WALES
well as political will, is necessary to ensure the
The NSW government has recognised that
ongoing effectiveness of programs such as the
there is still room for improvement, with respect
DVICM, its positive results to date indicate that
to both the protection of victims and the
such costs would go towards breaking the cycle
prevention of domestic violence in the future.
of violence and protecting individuals in their
The Domestic Violence Intervention Court
own homes.
response to domestic violence by the police and government agencies in an attempt to support victims and break the cycle of violence. Once a report is made the police will make an immediate request for an ADVO. They can also initiate an arrest warrant with strict bail
le g al li nk s
Model (DVICM) involves a coordinated
Go to the following website to read more about the law relating to domestic violence: www.liac. sl.nsw.gov.au/hot/pdf/domestic_ violence_66.pdf
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New technology Advances in technology always put the law under pressure to remain current. New technology contributes to changes that may be either radical and sweeping or subtle and incremental. For instance, the invention of the petrol-powered motor vehicle changed the way people in industrialised countries lived over the course of the twentieth century, and required the introduction of new laws for safety, ownership and licensing, and (eventually) environmental protection.
More recently the progress made in ‘birth technologies’ has also seen changes to laws at both state and federal level to resolve issues about parentage, inheritance, and financial maintenance. As children can now be conceived from donated biological material, the law had to clarify and differentiate biological rights and obligations from ‘social’ rights and obligations deriving from the family roles and relationships in which people actually live. The use of DNA evidence in criminal matters has led to convictions where previously, without other physical evidence, there would have been no conviction. As technology has improved, so have the chances of solving previous ‘cold cases’. In NSW, there are more than 400 unsolved homicides, dating back as far as 1975. Because DNA is very stable and can last for a significant period of time, biological material collected can still be used, decades later, to create DNA profiles for analysis. In 2008 some of these unsolved cases were reopened for police investigation, with DNA analysis a key tool. The Crimes (Forensic Procedures) Act 2000 (NSW) was introduced to set guidelines for the DNA testing of criminal suspects. The Act sets out who may be tested and who may order the test, as well as detailed requirements for how the procedures may be conducted. The manner in
Figure 4.5 The invention of the motor car resulted in enormous social change, including changes to legal systems around the world.
which a DNA sample is obtained can determine its admissibility in court. In 2007, several amendments to the Act took place. Among other changes, s 11 was revised to allow DNA samples to be collected from suspects
forensic relating to the detection and investigation of crime
84
The development of life support devices and
in an increased range of offences, which include
treatments since the 1960s has meant that the
some indictable offences as well as a number of
legal definition of death had to be changed. Rather
summary offences.
than referring to the cessation of respiration and
Another major change concerned the period of
heartbeat, most jurisdictions now require the
time that a suspect’s DNA material could be kept
irreversible cessation of all functions of the entire
for forensic use. Under the Act prior to the 2007
brain, as it is now possible to keep a person’s heart
amendments, DNA material had to be destroyed
and lungs operating for a significant period of time,
after 12 months if the criminal case against the
but with no brain function.
person did not proceed. However, under the
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amended s 88(2)(c), where DNA has been collected from a suspect who ends up being convicted of a different crime as a result of an investigation of the same acts, the DNA material does not have to be destroyed.
The leg al s y s tem
Such provisions are intended to increase conviction rates. Some have argued, however, that without sufficient legislative protections relating to the use of this technology, there can be an erosion of the rights of accused persons. For example, the wait time for the results of a DNA test can be up to 180 days. This raises serious issues if the prosecution case is dependent on that evidence, especially if the accused has been refused bail. In order to speed up the process, the NSW government decided in 2008 to outsource some of its testing to private laboratories. Such delegation of responsibility will generally require further safeguards to ensure privacy, confidentiality, and integrity of the testing procedures.
Figure 4.6 Advances in medical technology, such AS)6& ARECREATINGNEWCHALLENGESFORTHELAW
R EV I EW 4 . 2 1 What are the factors that have to be balanced when introducing new legislation or amendments that use scientific advances to increase police investigative powers? 2 What are some other scientific advances that have led or may lead to legislative changes? List some of the considerations that need to be considered or balanced when making changes.
Figure 4.7 DNA testing holds great potential for law enforcement agencies, but brings with it a range of legal and ethical issues.
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ca s e s tu d y
Identity theft Over the past ten years there has been an
obtaining loans, government benefits or
increase in what is known as ‘identity theft’ or
employment benefits; evading the payment
‘identity fraud’. With the development of more
of taxes; money laundering; drug smuggling;
sophisticated computers, scanning devices and
people smuggling; or stalking or intimidating
software applications, this type of crime has
someone.
become easier. It is also attractive, as it can
The theft or assumption of another person’s
yield significant rewards with a high probability
identity, or the use of his or her personal
of not being caught.
information, was not itself a criminal offence
Identity theft has the potential to cause
in most Australian jurisdictions until recently.
immediate financial loss as well as damage to
(The first states to enact legislation specifically
a victim’s credit rating and reputation. It can
criminalising identity theft were South
also be psychologically distressing to know that
Australia and Queensland, in 2003 and 2007
someone else is using your identity to engage in
respectively.) Rather, it was what was done with
serious criminal activities. Those activities could
the stolen identity. Because assuming another
include using credit card numbers; fraudulently
person’s identity was a preparatory step in
Figure 4.8 The advent of digital technology has made identity theft easier to commit and more DIFlCULTTOPROSECUTEBECAUSEOFFENCESARECOMMITTEDACROSSJURISDICTIONALBORDERS
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in respect of such act, or pretence, under any
theft, such offences could be used to prosecute
other enactment or at Common Law.
the identity theft. However, that requires the prosecution to prove the associated offence. It can be difficult to adapt specific theft, fraud and forgery offences to fit the facts of identity crime. Much existing legislation, including the provisions in the Model Criminal Code referred to in Chapter 3, requires at least proof that the accused had the intent to use the information in his or her possession to obtain a financial benefit. However, identities can be assumed for other reasons, for example to cross national borders for the purposes of organised crime or terrorism. Law reform in this area could include the enactment of state and federal legislation creating one or more general identity crime offences. In 2008, this was the recommendation
Other sections in the Crimes Act that could
identity theft obtaining or using the identity of another person in order to commit a range of fraudulent activities, usually to obtain financial gain
be used to prosecute identity crime include: s Personating owner of stock or property (s 184A) s Fraudulent misappropriation (s 178A) s Obtaining money etc. by deception (s 178BA) s Obtaining money by false or misleading
fraud a dishonest act, done intentionally in order to deceive
statements (s 178BB) s Obtaining credit by fraud (s 178C)
The leg al s y s tem
the commission of offences such as fraud or
s Obtaining property by false pretences or wilfully false statements with intent to defraud (s 179) Unauthorised access to and modification of computer data are covered in Part 6 of the Act, and these also might be used to prosecute identity crime.
of the Model Criminal Law Officers’ Committee of the Standing Committee of AttorneysGeneral. The model offences would include making, supplying or using information about a person that is capable of being used to identify
R ESEAR CH 4 . 2
him or her; possessing such information with
Go to www.aic.gov.au/conferences/other/smith_
intent to commit or facilitate an indictable
russell/2002-07-fraud.pdf and research the types of
offence; and possessing equipment to create
criminal activities that can be carried out under the
such information.
following categories: s Terrorism
LEGISLATIVE PROVISIONS FOR IDENTIT Y THEFT IN NSW
Section 184 of the Crimes Act 1900 (NSW) is
s Unlawful immigration s Fraud involving e-mail and the Internet s Dissemination of obscene materials electronically
the provision most directly relevant to Identity
s Funds transfer fraud
theft. It states:
s Health benefits fraud
Whosoever falsely personates, or pretends to
s Social security fraud
be, some other person, with intent fraudulently to obtain any property, shall be liable to imprisonment for seven years. Nothing in this section shall prevent any person so personating, or pretending, from being proceeded against
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Agencies of reform As discussed above, there are various reasons as to
advise the government on how the law can be
why the law may become dated or no longer able
changed to meet current needs. It also works to
to regulate society in a fair and just manner. The
bring about harmonisation of Commonwealth,
terms of reference a set of guidelines used to define the purpose and scope of an inquiry
extent to which the law may need to be reformed
state and territory laws where possible. It must
is usually investigated and reported upon by one
ensure that laws, proposals and recommendations
or more of the following organisations or groups.
do not trespass on personal rights and are con-
harmonisation agreement among the laws of different JURISDICTIONS
Law reform commissions
particularly in the area of human rights.
Law reform commissions have been established by
consultation. Once the ALRC has completed an
sedition words or acts said or done with the intention of urging others to use force against the government
various parliaments within their own jurisdictions
inquiry and report, it will make recommendations
to report on matters referred to them under what
to the federal government through the Attorney-
is called the terms of reference for a particular
General. The government can accept all or some
inquiry. The reports may contain recommend-
of the recommendations or can ignore the report
ations for ways to modernise or simplify the law,
altogether. Sometimes the political climate at the
hung jury AJURYTHATISUNABLETO reach agreement
or to eliminate defects.
time may determine whether the commission’s
sistent with Australia’s international obligations,
An essential feature of law reform commissions
An inquiry involves a process of research and
recommendations become enacted into law.
is that they are independent of the parliament
In its annual reports, the ALRC publishes a
that established them. This is important because
summary of the implementation status of its re-
political interference in the research and reporting
commendations. More than 80 per cent of ALRC’s
process can skew the findings. It has also been
recommendations have been either substantially
said that when a government provides the terms of
or partially implemented by the government.
reference for an inquiry into an area of law reform,
Some of the more recent areas of law reform
it should not already know the answer. In other
examined by the ALRC are the federal sedition
words, the government should not know what the
laws, privacy laws, and freedom of information
end result or recommendations will be.
legislation.
For the purposes of our area of study, the two law reform commissions to be examined are the
The NSW Law Reform Commission
Australian Law Reform Commission and the NSW
This commission was set up under the Law Reform
Law Reform Commission.
Commission Act 1967 (NSW). It was the first of its kind in Australia. It has a similar role to the ALRC,
The Australian Law Reform Commission
but at the state level: to consider the laws of NSW
The Australian Law Reform Commission (ALRC)
that are out of date, unnecessary, too complex,
was established in 1975 and operates under the
or defective. Its role also includes consolidating
Australian Law Reform Commission Act 1996 (Cth).
overlapping legislation, hence simplifying the law.
It is an independent statutory (set up by a statute)
The NSW government will refer issues to the
body. The main role of the Commission is to review Commonwealth laws relevant to matters referred
88
with a view to eliminating aspects of the law
Commission for investigation as to what, if any, law reform is necessary. In its research it will generally consult with the public.
to it by the Attorney-General, to conduct inquiries
A report released by the Commission in
into areas of law reform in these areas, and to
2005 was on majority verdicts in criminal trials.
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R ES E A RC H 4 . 3
The proposal was to investigate changing from
for deliberation has passed (not less
unanimous verdicts to majority verdicts of 11 or
than eight hours) and where the court
Go to www.austlii.edu.
10 jurors.
is satisfied that it is unlikely the jury will
au/au/other/nswlrc/
reach a unanimous verdict.
and select from one of
Bureau of Crime Statistics and Research in 2002
It appears that the changes may have
showed that 8 per cent of trials in the District
been politically motivated, rather than
Commission’s completed
Court between 1998 and 2001 resulted in a hung
to reform a law that was not working.
reports dating from
jury. It also showed that in over 90 per cent of
An appeal to the ‘law and order’ vote has
2005. Provide a brief
these hung juries the vote was 7–5 or 8–4. Given
been a common feature of the political
outline of the following:
these statistics, there did not appear to be a strong
landscape since the late 1980s in NSW.
s the purpose of the
basis for changing the system. There weren’t
A reason given for the introduction of
many cases in which a jury was unable to return a
the law was to protect the victims of
verdict because of one recalcitrant juror.
crime from the anguish of a lengthy
the NSW Law Reform
report s the findings of the report.
Other arguments for majority verdicts were that
retrial. The extent to which this law will
Ask your teacher for
it would make verdicts quicker and easier, would
compromise the right of the accused to
some assistance as you
create less pressure on jurors, and would be consis-
a trial with the highest standard of proof
review the report you
tent with most other Australian jurisdictions.
remains to be seen.
have chosen.
The leg al s y s tem
Prior to this inquiry, research by the NSW
Arguments for retaining unanimity included: s It accords with the principle of ‘beyond reasonable doubt’. Arguably, if one or two jurors are not confident that the accused is guilty, that is enough to constitute reasonable doubt. s It allows for greater deliberation of the issues. s Juries may disagree for good reasons. s It promotes community confidence in the justice system. s It is consistent with the requirement of unanimity in trials for Commonwealth offences. s The number of hung juries is relatively small. In its conclusions the Commission stated:
Parliamentary committees Parliamentary committees can be established by both houses of parliament. For example, at the federal level the House of Representatives and/or the Senate may not have sufficient time in parliamentary sitting sessions to discuss issues that arise from a particular piece of legislation. There may be flaws in the effectiveness of a law or the legislation may be particularly complex, requiring greater scrutiny. Committees scrutinise government acti-
We believe that until a comprehensive study is
vity, including policy and administrative decisions,
conducted in NSW to determine the existing prac-
and oversee the expenditure of public money.
tices in NSW jury trials, and what improvements
A vote is usually taken to take something to
need to be made, no major overhaul of the jury
committee. A committee may involve only Senators
system should be attempted … The facts are
or Members of the House of Representatives. A ‘joint
that we simply do not know enough about how
committee’ will have both Members and Senators.
actual juries really deliberate and why they reach
A ‘standing committee’ is a committee that
the decisions they do ... Until more information
is permanent during the life of the body that
is uncovered as to the problems that need to be
appointed it. Standing committees inquire into and
addressed, the introduction of majority verdicts
report on matters referred to them by the Senate
would be of limited value.
or House of Representatives, including estimates
Despite this advice, the NSW government
of expenditure, bills, and the performance of dep-
passed the Jury Amendment (Verdicts) Act 2006. It
artments allocated to them. An example of such a
amends the Jury Act 1977 (NSW) to allow majority
committee is the Senate Standing Committee on
verdicts of 11–1 or 10–1 after a reasonable time
Finance and Public Administration.
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terms of reference a set of guidelines used to define the purpose and scope of an inquiry into law reform Hansard a full account of what is said in parliament or in parliamentary inquiries; named for English printer T. C. Hansard n WHOlRST printed a parliamentary transcript table to place on the table for discussion
‘Select committees’ are small committees appointed for a particular purpose, or a once-only task.
the media can be a powerful vehicle for holding governments accountable. The effectiveness of non-legal mechanisms in
Once a committee has been asked to undertake
influencing law reform can depend on the politics
an inquiry, the terms of reference are drawn up.
of the day. For example, an issue that affects voters
Members of the public as well as experts in a field
in a hotly contested electorate, or an electorate
may be asked to give submissions. The committee
that is part of the government’s key support base,
will hear witnesses, examine evidence, and
is more likely to be addressed than one that affects
formulate conclusions. The media usually attend
voters in a safe seat. If votes in an electorate do not
and report on committee proceedings.
pose a threat to seats in parliament, then the issue
As the hearings are conducted in public, every submission is recorded in Hansard and avail-
may be ignored in the hope that it will eventually fade from public attention.
able on the Internet. At the end of the inquiry
The modern media can promote law reform
the committee will write and table a report in
simply by reporting the stories of individuals who
parliament.
may suffer discrimination, persecution or financial loss due to a poorly framed law. For example, the
The media
plight of victims of sexual assault has received
One of the hallmarks of a sound
over the past few years. The resulting law reform
working democracy is a ‘free’
recognised that sexual assault is a ‘special crime’
and ‘fair’ press. This means that
which cannot be treated as all other crimes and
the government is not able to
requires additional legal responses. This will be
influence what is reported and
examined in greater detail in Chapter 5.
significant attention by all forms of mass media
how it is reported, so stories that reach the public are an accurate account of what is really happening.
Another
essential
feature of a working democracy
Non-government organisations (NGOs) are organi-
is diversity of media ownership to
sations that are independent of governments.
dilute the influence of individuals
They are under no obligation to conform to any
or media companies who may
government policy and therefore can be a source
have a particular ideological view
of objective information about various issues
to push.
around the world. This is particularly important
Because of their large audience and geographical reach, current affairs programs like the ABC’s
for people who live in countries with repressive governments that restrict freedom of speech. The common characteristics of NGOs have been
‘7.30 Report’ are able to interview
identified as follows:
important political figures, such
s They are formed voluntarily by individuals.
as the prime minister, state
s They are independent of government.
premiers and cabinet ministers,
s They are not for private personal gain or profit.
about contentious issues. Keeping
Money generated goes towards the goals of the
citizens informed allows them to
organisation, though it may also be used to
apply public pressure on governments to address
produce information and for expenses such as
injustices, incompetence or corruption. Thus
utilities, publications, and paid employees.
Figure 4.9 Current affairs programs on television are able to influence popular opinion and apply public pressure on issues of social and legal importance.
90
Non-government organisations
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s Their aim is to improve people’s circumstances and prospects, within the scope of their mission.
Commonwealth: Guidelines for Good Policy and Practice 4HE #OMMONWEALTH&OUNDATION ,ONDON
Figure 4.10 !CTION!ID!USTRALIAFORMERLY!USTCARE is part of an international anti-poverty agency active in OVERCOUNTRIES
NGOs can work with governments where there
public as well as governmental inquiries. They may
are shared goals. The Australian government’s
do this by writing letters, requesting a meeting
overseas aid program has the aim of reducing
with a representative or senator, or making policy
poverty in developing countries. The program
submissions, or by writing letters to the editor or
is managed by the Australian Agency for Inter-
calling talkback radio. A lobby group may also be
national Development (AusAID). Among other
an NGO, an industry group or other interest group.
tasks, AusAID provides funding for NGOs within
The Lone Fathers Association of Australia has
Australia that have this particular mission and that
been a strong advocate for ‘shared equal parent-
undergo an accreditation process to ensure that
ing’. Amendments to the Family Law Act 1975
they have strong community support.
(Cth) in 2006 were intended to encourage the
As a mechanism for law reform the effectiveness
use of non-court-based services for dealing with
of NGOs can vary. Some NGOs such as Amnesty
relationship difficulties and separation, and to
International, discussed in Chapter 2, and Green-
ensure that children have meaningful relationships
peace have developed a formidable reputation in
with both parents after a separation or divorce. A
their pursuit of goals such as human rights and
number of organisations including the Women’s
combating environmental threats. Consequently,
Refuge Resource Centre, the Family Law Director
they now have the resources and the tactics, devel-
of NSW Legal Aid, and Women’s
oped over many years, to put pressure on nations.
Legal Services NSW made sub-
The leg al s y s tem
C. Ball and L. Dunn, Non-Governmental Organisations in the
R EVI EW 4 . 3
Due to NGOs’ independent status, however,
missions to a state inquiry into
governments and other institutions can ignore
the impact of the amendments,
1 Compare and contrast the
them and continue to carry out practices that are
expressing concern that they not
aims and methods of the
contrary to the NGOs’ goals. The Royal Society for
only subordinate children’s best
following agencies of law
the Prevention of Cruelty to Animals (RSPCA) has
interests to the interests of the
reform:
campaigned for an end to live animal exports to
parents, but also offer reduced
a Law Reform Commissions
other countries, while the Australian government
protections for victims of family
is reluctant to stop this profitable trade.
violence. Former Chief Justice of the Family Court Alistair Nicholson
Lobby groups
commented that the amendments
A lobby group is an organised group of people who
enced by fathers’ groups and did
try to influence government ministers or other
little to reform family law’.
were ‘ill-researched, unduly influ-
and lobby groups b Parliamentary committees and Law Reform Commissions c Lobby groups and the media d Lobby groups and NGOs
members of parliament to advance their social or
Lobby groups can be important
political agenda. The goal may be to change the
agents of law reform as long as some
individuals can contribute
law, to keep a particular law that already exists, or
groups’ interests are not favoured
to an inquiry by a law
to introduce new laws.
over others simply because they
reform commission or a
are better organised and can more
parliamentary committee on
effectively articulate their views.
an issue that concerns them?
Lobby groups target members of parliament, parliamentary committees, the media and the
2 What are some of the ways
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Mec h a n i s m s o f l aw r e f o r m The mechanisms of law reform are the ‘machinery’
The impetus for this type of change, however,
that actually brings about changes. These include
usually comes from other sources: namely the
judicial and legislative branches of government, as
conditions that lead to law reform and the agents
well as international organisations.
of reform. Detailed knowledge of the subject matter is often required to report and comment
precedent AJUDGMENTTHATIS authority for a legal principle, and that serves to provide guidance for deciding cases that have similar facts balance of power the power held by the political party whose vote is needed to pass legislation; usually determined in the upper house of parliament under the Westminster system of government
Courts
accurately on areas where reform is needed,
The manner in which courts make law through
extend to this level.
and parliamentarians’ expertise does not always
precedent, as outlined in Chapter 2, can be con-
The parliament is still a place, though, where
sidered a means of law reform. Precedents made
proposed laws are debated. This can be a rigorous
in higher courts clarify what the law should be,
and intense process, especially if a proposed law
in cases where the law is in an early stage of
is controversial or is a radical departure from
development or where there is a need to clarify
previous laws. If a political party holds government,
the meaning of words contained in legislation.
it obviously has a greater chance of its bills being
Sometimes, matters come before a court
passed. A bill’s fate, however, may depend on
before they have been considered by parliament.
which party or parties hold the balance of power
However, courts do not consciously set out to
in the Senate.
reform the law. The role of judges is to deal with
Political parties present their policies to the
the matter before them, and as such law reform in
voters prior to each election, and if voted into
the courts comes about in an ad hoc or piecemeal
power they are expected to fulfil these promises.
way. Although changes to the law do occur as a
For example, the Labor Party under Kevin Rudd
result of judicial decisions, they do so over an
campaigned in 2007 with the promise of repealing
extended time frame.
John Howard’s ‘Work Choices’ legislation. By the
Even so, it is well recognised that courts,
end of 2008, the Rudd government had introduced
especially the High Court of Australia, have deli-
new workplace relations legislation that abolished
vered and will continue to deliver decisions that
some of the harsher elements found in Work
revolutionise the legal landscape in Australia. An
Choices.
obvious example is the 1992 Mabo decision
As parliament is the branch of government
declaring that native title still existed within
that makes law, it will continue to be the main
Australia and that the concept of ‘terra nullius’
mechanism by which major law reform will be
was a legal lie perpet u-
carried out.
ated by the British at the time of settlement.
The United Nations
Parliaments
The United Nations is the chief organisation
Parliaments today are
Nations in the development and implementation of
the institution where most
international treaties was outlined in Chapter 2. As
law reform is realised.
such it is the primary mechanism in the evolution
The process of changing
and reform of the law governing nation-states.
the law occurs through Figure 4.11 The Australian Senate chamber
92
the passage of all bills.
involved in international law. The role of the United
The effectiveness of the UN in promoting peace and security around the world via international
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When parliament wants to amend an Act,
they are no longer needed. They must contain
it has to pass another Act to accomplish
a provision to guard against their purpose
this. For example, the Crimes (Forensic
being ‘undone’ when they are repealed,
Procedures) Amendment Act 2007 (NSW),
however. Section 4(2) of the Crimes (Forensic
which changed several sections of the Crimes
Procedures) Amendment Act 2007 states that
(Forensic Procedures) Act 2000 (NSW), was
‘the repeal of this Act does not … affect any
enacted and came into force through normal
amendment made by this Act’.
parliamentary procedures. However, you
The function of an amending Act is just
will not find it in the current statutes of NSW,
that: to amend. The Act that it amends is
because it has been repealed. Indeed, s 4(1)
called the ‘principal Act’.
of the Act states that ‘this Act is repealed
You may be able to view amending Acts,
on the day following the day on which all of
and previous versions of principal Acts,
the provisions of this Act have commenced’.
in some online legislation databases by
What’s going on?
choosing ‘History’ or ‘Acts (Point-in-Time)’.
Amending Acts are passed for a very
‘Consolidated Acts’ and ‘In Force Legislation’
specific purpose: to amend another piece of
will usually contain only Acts that are
legislation. They are often very short-lived,
currently in force – i.e. Acts that have not
and once they have accomplished their task,
been repealed.
The leg al s y s tem
l e g a l i n fo
Amending Acts
law is discussed in more detail in Chapter 2. Law reform may take place when Australia implements a treaty by passing domestic legislation that takes account of the international obligations.
Intergovernmental organisations As mentioned in Chapter 2, many intergovernmental organisations (IGOs) are subsidiaries of the UN. These bodies are established to meet and decide upon certain international issues such as refugees, tariffs and wealth. To this extent they contribute to international law reform on a global
Figure 4.12 The United Nations, Geneva
as well a regional scale through the promotion and development of multilateral and bilateral treaties.
Royal Commissions – www.ag.gov.au/www/agd/ agd.nsf/Page/Consultationsreformsandreviews_
Other agencies
Royalcommissions
Other agencies of law reform also exist. Go to the
CORONERS
websites below to research the role they perform in contributing to law reform in Australia.
The NSW Coroner – www.lawlink.nsw.gov.au/ The Office of the NSW Ombudsman – www. ombo.nsw.gov.au/
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C hap ter s u m m a ry M u lt i p le - c ho i c e q ues ti ons 94
s Law reform is the process of changing the law to make it more current, correct defects, SIMPLIFYIT ANDREMEDYINJUSTICE s The conditions that give rise to law reform are changing social conditions, new concepts of JUSTICE ANDNEWTECHNOLOGY s The law must reflect social values if it is to stay relevant and to ensure a high rate of compliance. s 7HENTHELAWFAILSTODELIVERJUSTOUTCOMESTO individuals or groups within the community, ITMAYMEANTHATNEWCONCEPTSOFJUSTICEARE needed. s The rate of technological change in the world today has put the law under significant pressure to stay current. The law must change to accommodate new possibilities. s Law reform commissions have been established by various parliaments within THEIROWNJURISDICTIONSTOREPORTONMATTERS referred to them. They are independent of government and submit recommendations that the government can implement fully, partially or not at all.
1 Which of the following statements is the most correct way to describe public morality? a a shared set of religious beliefs b crimes committed against the community c similar values and beliefs held by the MAJORITYOFTHECOMMUNITYATAPARTICULAR point in time d the shared set of beliefs held by the Australian Parliament 2 Law reform is necessary at times because technology advances at a rate faster than the law. Which of the following is not an area in which the law has had to change due to technological change? a identity theft b same-sex relationships c )6&PROCEDURES d collection of DNA evidence
s Parliamentary committees are established by both houses of parliament to examine ways of addressing flaws in legislation or simplifying the effectiveness of a law or the legislation may be particularly complex which may require greater scrutiny. It could also be the case that developments within society warrant greater attention before the legislature and therefore a committee is set up. s The media influence law reform by keeping citizens informed and holding governments accountable. s .ONGOVERNMENTALORGANISATIONS.'/S are organisations that are independent of governments. Their aim is to influence governments to make changes that will improve people’s conditions. s The primary mechanisms of law reform are the courts and parliaments. The United Nations can be a mechanism of law reform in Australia through the country’s participation in international treaties.
3 Law reform commissions have been set up by parliaments to investigate areas of potential law reform. Which of the following determines the scope of their investigation? a ministers’ directions to the Commission b terms of reference c public opinion d media commentary 4 Which of the following is not an agent of law reform? a unions b the Queen c superior courts d lobby groups 5 What could citizens do about a federal law that explicitly discriminates against naturalised citizens who were born overseas? a &ORMA,AW2EFORM#OMMISSIONATLOCAL level. b Bring defamation proceedings against TV or radio stations that run programs on that law. c Call talkback radio stations and form a lobby group to pressure parliament. d Lobby the state Supreme Court.
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The leg al s y s tem
C hap ter s u m m a ry ta s k s
1 Explain what is meant by law reform. 2 Explain why changing social conditions contribute to the need for law reform. 3 Explain, using examples, how the law has lagged behind technology. 4 Discuss the reasons why Australia no longer imposes capital punishment for murder. 5 Describe to what extent the law has improved its response to domestic violence. 6 Outline some of the problems that have arisen with the advent of DNA evidence. 7 Explain why identity crime can be difficult to prosecute.
8 Explain to what extent Law Reform Commissions are an effective instrument for changing the law. 9 Explain how the United Nations can be a vehicle for law reform in Australia. 10 Outline the strengths and weaknesses of the courts and Parliament as vehicles for law reform.
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CHAPTER 5
k e y t er m s/ v oc ab u la r y
c hap ter ob j e cti ve s
Law reform in action
96
In this chapter, students will: s identify and apply legal concepts and terminology s discuss the effectiveness of the legal system in addressing issues s investigate the interrelationship between the legal system and society s discuss the role of law in encouraging cooperation and resolving conflict s discuss the role of law in initiating and responding to change s locate, select and organise legal information from a variety of sources including legislation, cases, media reports, international instruments and documents s account for differing perspectives and interpretations of legal information and issues s communicate legal information using well-structured responses
Topic 1: Law reform and native title dispossession martial law native title nomadic pastoralists terra nullius Topic 2: Law reform and sport assault civil litigation conciliation
contempt of court express consent indictable offence sponsorship tort law trespass to the person vicarious liability Topic 3: Law reform and sexual assault complainant consent in camera sexual assault
Topic 1: Law reform and native title I M P O RTA NT L EG I SL ATI O N
Racial Discrimination Act 1975 #TH Aboriginal Land Rights (Northern Territory) Act 1976 #TH Aboriginal and Torres Strait Islander Heritage Protection Act 1984#TH Native Title Act 1993#TH Native Title Amendment Act 1998 #TH Native Title Amendment Act 2007#TH Native Title Amendment Act (Technical Amendments) Act 2007#TH National Parks and Wildlife Act 1974.37 Aboriginal Land Rights Act 1983.37 SI G NI FI C A NT C A SES
Mabo v Queensland;=(#! Mabo and Others v State of Queensland (No. 2);=(#! Milirrpum v Nabalco Pty Ltd &,2 Wik Peoples v Queensland ;=(#! Members of the Yorta Yorta Aboriginal Community v Victoria;=(#! Topic 2: Law reform and sport I M P O RTA NT L EG I SL ATI O N
Racial Discrimination Act 1975 #TH Anti-Discrimination Act 1977 .37 Sex Discrimination Act 1984 #TH Australian Sports Commission Act 1989 #TH Disability Discrimination Act 1992 #TH
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The leg al s y s tem
Topic 1 Law reform and native title Topic 2 Law reform and sport Topic 3 Law reform and sexual assault relev ant l aw SIGNIFIC AN T C AS ES
Gardner v AANA Ltd ;=&-#! Rogers v Bugden and Canterbury-Bankstown !42 Taylor v Moorabbin Saints Junior Football League and Football Victoria Ltd ;=6#!4 Topic 3: Law reform and sexual assault IM PORTA N T L EGIS L AT ION
Criminal Procedure Act 1986 .37 Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 .37 Criminal Procedure Amendment (Evidence) Act 2005 .37 Criminal Procedure Further Amendment (Evidence) Act 2005 .37 Crimes Amendment (Consent – Sexual Assault Offences) Act 2007.37 SIGNIFIC AN T C AS ES
R v Anon 'ANGRAPECASE R v MM R v Mc R v Mak and others R v BS and MS 'ANGRAPETRIAL
od d l a w In the state of Louisiana, USA, a person could land in JAILFORUPTOTENYEARSFORSTEALINGANALLIGATOR ,OUISIANA2EVISED3TATUTES23 Theft of an alligator A. Theft of an alligator is the misappropriation or taking of an alligator, an alligator’s skin, or a part of an alligator, whether dead or alive, belonging to another, either without the consent of the other to the misappropriation or taking, or by means of fradulent conduct, practices, or representations. An intent to deprive the other permanently of the alligator, the alligator’s skin, or a part of the alligator is essential. " ;7=HENTHEMISAPPROPRIATIONORTAKING amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both. 7HENTHEMISAPPROPRIATIONORTAKINGAMOUNTSTO a value of three hundred dollars or more, but less than … five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than two thousand dollars, or both. 7HENTHEMISAPPROPRIATIONORTAKINGAMOUNTS to less than a value of three hundred dollars, the offender shall be imprisoned for not more than six months or may be fined not more than five hundred dollars, or both. …
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To p i c 1: L aw r e f o r m a n d n a t i ve t i t l e
Co n d i t i o n s t h a t l ea d t o l aw r e f o r m o n n a t i ve t i t le native title the right of Indigenous people to their traditional lands
In basic terms, ‘native title’ refers to the right to land by the original inhabitants. In Australia
History of government policy
it has a legal significance and it is a right to an
nomadic a term used to describe people who tend to travel and change settlements frequently
area of land, claimed by peoples whose ancestors
‘Aboriginals’, as they were called by past
were the original inhabitants before European
generations, are more appropriately referred to as
settlement and who can prove that they have had
‘Indigenous Australians’, as this term encompasses
a continuous association with that land.
both Aboriginal and Torres Strait Islander peoples.
In fact, the term has such significance that it is
Torres Strait Islanders are of Melanesian origin.
dispossession the removal or expulsion of people from their traditional lands
the name given by the High Court to Indigenous
One of the most famous Torres Strait Islanders
property rights as recognised by the Court in Mabo
is the late Eddie Mabo, who was born on Murray
and Others v State of Queensland (No. 2) [1992]
Island (Mer) and belongs to the Meriam people. We
HCA 23. The Mabo decision was the first legal
will refer to Eddie Mabo and his legal battles later
martial law military government and laws imposed on civilian society, which overrides civil law
recognition that the Indigenous people of Australia
in this chapter.
had a system of law and ownership of their lands
Indigenous people have inhabited the Austra-
that existed long before European occupation and
lian continent for the past 50 000 years, living a
settlement. This recognition overthrew the idea
mostly nomadic lifestyle. Although they did not
of terra nullius and subsequent cases have led to
use legal documents or written laws, it is un-
efforts to enshrine native title in legislation.
disputed that Aboriginal and Torres Strait Islander peoples used oral law, customs and traditions to maintain order and control behaviour. Tribal elders employed negotiation, discussion, rulings and sanctions when it came to unacceptable behaviour, and traditional Indigenous society was and is rule-governed. It is clear from the map on page 46 that Indigenous people lived in distinct tribal and language groups, and it is not accurate to categorise Indigenous people as belonging to a single cultural group. In 1788, when the First Fleet arrived, the belief at the time was that Aboriginal and Torres Strait Islander people were ‘savages’, with no concept of land ownership. There were no fences, landlords, tenants or farms to speak of, and therefore the British government declared the land terra nullius (land belonging to no one, or
Figure 5.1 Eddie Mabo outside the High Court, with his legal team
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uninhabited land).
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The colonial laws and policies relating to Indigenous people did not serve their interests.
Some examples of these laws and policies can be seen in Table 5.1.
Policy/law
Effect
Dispossession/dispersal (1788–1800s) Since Indigenous people were not recognised as citizens, it was not a criminal offence to hunt, shoot and kill them. The general belief was that Indigenous people would eventually ‘die out’.
– Massive reduction in Indigenous population. – Traditional Indigenous areas were converted to farming lands.
– Martial lawIN.37
– Aboriginal people could be shot on sight if armed with spears, or even if they were unarmed and within a certain distance of houses or settlements.
n-ARTIALLAWIN4ASMANIA
– Settlers were authorised to shoot Aboriginal people.
The leg al s y s tem
Table 5.1 Government policies and their effects on Indigenous Australians
Protection (1869–1909) – Aboriginal Protection Act 18696IC
– These Acts gave wide powers to the Board for the Protection of Aborigines, which governed where Aboriginal people could live ANDWORK WHATJOBSTHEYCOULDDO ANDWHOMTHEYCOULDMARRYAND associate with.
– Aborigines Protection Act 1909.37
– The powers of the Board under the NSW Act were similarly wide, and included the power to remove children from homes to be placed in missions.
Assimilation and integration (1900–1967) – By this time, Indigenous populations were a long way from ‘dying out’, and the policy was to ‘Europeanise’ them so that they would leave behind their language, culture, artefacts and traditions, become ‘similar’ to white people, and ‘integrate’ into mainstream society.
n4HE%UROPEANMAJORITYATTEMPTEDTOTEACHTHE)NDIGENOUS population to be ‘white’. This was met with both submission and resistance.
– Nationality and Citizenship Act 1948 #TH
n!BORIGINALPEOPLEBECAME!USTRALIANCITIZENSASDISTINCTFROM British), along with everyone else, but not all states gave them full rights, such as the right to vote in Commonwealth elections
nS@%XEMPTIONCERTIlCATESOR@#ITIZENSHIP certificates’ were given to some Aboriginal people by some states.
– Effectively, these certificates meant the holders were ‘not Aboriginal’. They certificates had strict conditions such as requiring a ‘European lifestyle’, and could be revoked without warning.
nAMENDMENTSTOTHECommonwealth Electoral Act 1918 #TH
– The amendments gave the right to vote in Commonwealth elections to all Indigenous people in states that had not already provided for this right.
nREFERENDUMAMENDINGTHE#ONSTITUTION
– The phrase ‘other than the Aboriginal race in any State’ was removed FROMSXXVI GIVINGTHE#OMMONWEALTHTHEPOWERTOMAKELAWS SPECIlCALLYFORTHEBENElTOF!BORIGINALPEOPLE3ECTION WHICH provided that Aboriginal people were not counted as part of the population for census purposes, was deleted.
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To p i c 1: L a w r e f o r m a n d n a t i v e t i t l e
Figure 5.2
[email protected],AND
R EV I EW 5 . 1 1 Describe the legal system of Indigenous Australians prior to 1788. 2 Identify the Latin term meaning ‘land belonging to no one’. 3 Describe the three main policies of Australian governments in relation to Indigenous people from 1788 to 1967. List one effect of each policy.
Figure 5.3 Under the policy of protectionism, Aboriginal people were forced to live on reserves – often under terrible conditions.
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Part of the rich and diverse cultural heritage of
nearly as far west as the current border of Western
Aboriginal and Torres Strait Islander peoples was
Australia – belonged to the Crown, not to the
a well-developed structure of laws that governed
Indigenous people.
their relations with one another and with the land.
The concept of terra nullius has had a vast
All of this changed with European settlement.
impact on the Indigenous population. Their treat-
It was to take 200 years before this system was
ment by the colonists, loss of land, loss of culture
formally recognised.
and dispersal have led to considerable social
The leg al s y s tem
O p era t io n o f t he lega l s ys tem i n re l a t io n to n a t i ve t i t le
problems. This will be discussed in more detail
The doctrine of terra nullius in Australia
later in the course. By the 1840s, for example,
The term ‘terra nullius’ means ‘land belonging to
been forcibly relocated.
most Aboriginal people in Tasmania had either been killed, died from introduced diseases, or
no one’. As a common law concept, it refers not
The concept of terra nullius has also had an
only to uninhabited territory, but also to territory
enormous impact on native title claims. Any
that has no recognisable system of law, or social
Aboriginal or Torres Strait Islander community
or political organisation. Under the ‘doctrine of
that has tried to claim native title has had to prove
reception’, when uninhabited land was colonised
that they are the traditional owners of the land and
by Britain and no other system of law was apparent,
have an ongoing connection with it. As the land
then English law would dominate.
was considered empty prior to British settlement,
Over the course of a few decades, the perception
it also meant that the settlers could possess most
that the country had very few inhabitants, and
arable land with government approval – which
that they had no political or legal organisation
entailed driving off anyone else who might be
terra nullius ,ATIN @LANDBELONGING to no one’; the idea and legal concept that when the first Europeans came to Australia the land was owned by no one and thus was open to settlement
and thus no sovereignty, led to the legal fiction justifying British possession and the imposition of British law. Although Governor Arthur Phillip was under orders to establish friendly relations with the native people, and did make serious efforts in this area, language and cultural barriers meant that negotiations had limited success. Terra nullius as a justification for British policy was clearly evident by 1835, when businessman and explorer John Batman attempted to lease land from the Indigenous people in the area around the Yarra River in what is now Victoria. Batman negotiated a treaty for the transfer of the land in exchange for tools, weapons, food and blankets. Shortly thereafter Governor Richard Bourke declared the treaty null and void, on the basis that New South Wales – which extended from Cape York in the north to Wilson’s Promontory in the south and
Figure 5.4 Indigenous Australians have a strong bond with the land.
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To p i c 1: L a w r e f o r m a n d n a t i v e t i t l e
living on this land at the time. If the traditional
of the 19th century, government policies tended
owners of the land have been forced off their land
to condone violence. One of the most significant
(in some cases 200 years ago), how then do they
and tragic events of the 1800s occurred in New
prove a continuing connection with this land under
South Wales at Myall Creek, near Bingara. In June
Aboriginal law and custom?
1838, a group of Indigenous people who had set up camp on a cattle station were brutally attacked
The legal status of Indigenous Australians up to 1967
and killed by a group of white men (11 convicts and 1 free man), who claimed they were acting in retaliation for the theft of cattle. Twenty-eight men, women and children were slaughtered.
The doctrine of terra nullius meant that in the
The Governor of New South Wales, Sir George
eyes of the law Indigenous Australians did not
Gipps, ordered a police investigation into the
exist as citizens. The criminal laws did not protect
massacre. This was the first time that the British
Indigenous people, and throughout the first half
colonial administration had taken a decision to apply the criminal law on behalf of the Indigenous people. Initially, the 11 convicts were found not guilty of the crime. However, a subsequent retrial sent seven men to their death by hanging. As a result of this event, any further massacres of Aboriginal people went unreported. Up until the 1967 referendum, there were two references to Aboriginal people in the Constitution: sections 51(xxvi) and 127. Section 127 excluded Aboriginal people from the census. Section 51(xxvi) gave the responsibility for Aboriginal affairs to state governments. Since there were no federal laws governing the welfare of Indigenous people, different states interpreted their rights and legal status in various ways, resulting in inconsistencies and inhumanity. The 1967 referendum did not give Indigenous Australians the right to vote. The right to vote in Commonwealth elections had already been extended to all Indigenous Australians who did not already have this right under the laws of their state – namely, those in Western Australia and Queensland – by amendments in 1962 to the Commonwealth Electoral Act 1918 (Cth). The right to vote in state elections had been achieved in all states by 1965. Nor did the referendum grant citizenship to
Figure 5.5 Bill Onus, President of the Victorian Aborigines’ Advancement League, was the only Aboriginal to take part in the MARCHFOR!BORIGINAL2IGHTSREFERENDUM -AY
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Aboriginal and Torres Strait Islander people: most of the federal and state laws discriminating against them had been repealed by 1967. However, the
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referendum became a symbol of the public recognition of the rights of Indigenous Australians, and its success reflects this change in attitudes and beliefs that was taking place in the 1960s. Over 90 per cent of the population voted ‘yes’ on the
The leg al s y s tem
amendments to the Constitution. Section 51 (xxvi) was amended to allow the federal government to legislate for Indigenous people and to override any discriminatory state laws. Section 127 was deleted. From this point on, Aboriginal affairs became a federal issue, and Aboriginal and Torres Strait Islander people were counted in the census.
The development of native title Native title claims in the Northern Territory
Figure 5.6 0RIME-INISTER'OUGH7HITLAMIN WITH6INCENT,INGIARIOFTHE'URINDJIPEOPLE
In 1963, Yolngu people from the Gove Peninsula, in eastern Arnhem Land, sent a bark petition to
to the failure of the Gove land rights case. A
the Commonwealth government protesting the
royal commission into Aboriginal land rights was
removal of some 300 hectares of land for bauxite
established, under Justice Edward Woodward,
mining without their permission. The petition
who as a barrister had acted for the Yolngu people
failed to move the federal government to recognise
in the case. The findings of the commission led
the rights of the Yolngu people and hence the
to the drafting of the Aboriginal Land Rights
‘Gove land rights case’ (Milirrpum v Nabalco Pty Ltd
(Northern Territory) Act 1976 (Cth). This was the
(1971) 17 FLR 141) commenced in the Northern
first legislation in Australia to establish a land
Territory Supreme Court in 1971. In his ruling,
claim process by which traditional owners could
Justice Blackburn stated that if the Yolngu people
claim various parcels of land that were listed as
did have any type of native title rights, they would
available for claim.
have been extinguished under common law. Thus,
In response to the Gurindji land claim, the
the doctrine of terra nullius prevailed and they
government negotiated with the owners of the
could not prevent mining on the land.
stations to return part of the land to the traditional
Three years after the unsuccessful Yolngu
owners. The photo above depicts Prime Minister
petition, members of the Gurindji people walked
Gough Whitlam symbolically handing native title
off the job at two cattle stations in the Northern
back to the Gurindji people in 1975.
Territory, protesting against poor working conditions and pay. Their action was also a protest
The Mabo cases
against dispossession of their traditional lands by
Between 1985 and 1992, Eddie Mabo and four other
pastoralists.
men from the Murray Islands (the island known
In 1972, the Australian Labor Party, led by
as Mer) challenged the Queensland government in
Gough Whitlam, was elected after 23 years in
two cases in the High Court of Australia: Mabo v
opposition. That year, the government established
Queensland [1988] HCA 69 and Mabo v Queensland
the Department of Aboriginal Affairs in response
(No. 2) [1992] HCA 23.
pastoralists farmers raising sheep or cattle, usually on large areas of land
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The first case questioned the validity of a
legal position of landholders and the processes that
state law that attempted to abolish native title by
must be followed in claiming native title, the federal
asserting state ownership of the islands off the
government passed the Native Title Act 1993 (Cth).
coast of Queensland. The High Court held that the
The Mabo case and the ensuing legislation
Queensland Act was inconsistent with the Racial
significantly changed the legal status of Indigenous
Discrimination Act 1975 (Cth), because under it,
people in relation to native title and gave some
the Meriam people’s right to own property would
people access to parcels of land throughout
be limited to a greater extent than that of other
Australia to practise their traditional way of life.
members of the community. Where federal and
It did not allow Indigenous people to ‘own’ land,
state laws conflict, federal law prevails.
thereby restricting access to current owners. In
The second case, now known as the Mabo case,
December 1993, during the passage of the Native
concerned the Meriam people’s rights to occupy
Title Bill through parliament, Prime Minister Paul
and control Murray Island (Mer). Although Eddie
Keating said:
Mabo and one of his fellow plaintiffs died during this time, in May 1992, the High Court ruled (by six
[T]oday, as a nation, we take a major step
judges to one) that Australia was not terra nullius
towards a new and better relationship between
and that the Meriam people clearly held native title
Aboriginal and non-Aboriginal Australians. We
to their land.
give the Indigenous people of Australia, at last, the
The decision of the High Court in the Mabo
standing they are owed as the original occupants
case introduced the legal doctrine of native title
of this continent, the standing they are owed
into Australian law. In recognising the traditional
as seminal contributors to our national life and
rights of the Meriam people to their islands in the
culture: as workers, soldiers, explorers, artists,
eastern Torres Strait, the court also held that native
sportsmen and women – as a defining element
title existed for all Indigenous people in Australia
in the character of this nation – and the standing
prior to European contact. To make clearer the
they are owed as victims of grave injustices, as people who have survived the loss of their land and the shattering of their culture.
R EV I EW 5 . 2 1 Describe the changing legal status of Aboriginal and Torres Strait Islander people prior to 1967 and up to 1993. Why do you think laws have changed? 2 How was the Yolngu people’s native title claim resolved in court? What was the newly elected Whitlam government’s response to this decision? 3 Explain the importance of the 1992 Mabo decision for the legal status of Indigenous people. 4 Evaluate the statement made by Prime Minister Paul Keating in 1993 on the
Figure 5.7 Eddie Mabo took his challenge to the High Court and won.
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passing of the Native Title Act.
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Native title means the right of indigenous people to live on their land and use it for traditional purposes.
Claimants may obtain one of three types of determination: s unopposed determination (if the application is uncontested) s consented determination (if the parties involved reach an agreement through mediation)
Throughout the world there has been growing
s litigated determination (the application is
recognition of the rights of indigenous peoples to
contested in a court of law, and a judge makes
their own lands. Hunting and fishing rights and
a decision).
The leg al s y s tem
Growing recognition of native title in some countries
land ownership rights have been returned to many indigenous groups in different countries.
The role of the High Court
There has also been a move to give greater
With respect to native title claims, the High Court
self-determination to indigenous groups. Self-
of Australia has the same role as it does with any
determination means the rights of indigenous
other legal case: as a court that hears appeals
peoples to control the use of their traditional lands,
about decisions made in other courts of Australia. It
as well as the local economy and social policy.
cannot show sympathy or favouritism or be swayed
M¯aoris in New Zealand, Inuits in Greenland and
by public opinion when hearing these cases.
Canada, and Aboriginal and Torres Strait Islanders
Initial claims of native title are brought before the
are three indigenous groups who have been given
National Native Title Tribunal, which investigates
greater recognition in terms of native title and self-
and mediates claims made by Aboriginal and
determination in their own countries.
Torres Strait Islander peoples. The Federal Court of Australia will make the determination on whether
l eg al l i nks
native title exists. Any appeal against a determination is made to a full sitting of the Federal Court The Native Title Research Unit (NTRU) provides independent research on native title. Information relating to with native title can be
and then to the High Court of Australia. Thus, the High Court acts as a court of last resort in determining whether native title exists in claims made about certain geographical places in Australia.
found at its website: http://ntru. aiatsis.gov.au/index.html
The role of Parliament Parliament’s role in recognising native title is enacting legislation to protect the property rights
Agencies of law reform on native title
of Aboriginal and Torres Strait Islander peoples.
When claiming traditional ownership of land,
introduced in Australia. As mentioned above, the
Aboriginal and Torres Strait Islander groups must
Native Title Act 1993 (Cth) was enacted in response
have their claims legally validated. The only courts
to lobbying by the Indigenous community for
that can make this determination in Australia are
statutory law reflecting the Mabo decision, but
the Federal Court and the High Court. Initial claims
also lobbying by the mining and pastoral sectors
are brought to the National Native Title Tribunal
concerned about potential claims of native title on
but this body cannot make legal decisions about
their land.
native title; it can only carry out research and make recommendations.
Public pressure and lobbying by interested parties have seen new laws regarding native title
Members of parliament, as representatives of their constituents, also have a role to play in
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introducing and encouraging discussion and
As a result of the Mabo decision, the federal
debate about issues that concern all Australians.
government enacted the Native Title Act 1993 (Cth).
In this way parliament is able to address issues of
The purpose of this Act is to:
equity and justice.
s provide for the recognition and protection of
In 2008, Prime Minister Kevin Rudd apologised
native title
to Indigenous Australians for past injustices inflic-
s establish ways in which future dealings that
ted on them. Speaking in the House of Repre-
affect native title may proceed and set stan-
sentatives in Canberra on 13 February 2008, Mr
dards for these dealings
Rudd said the Parliament apologised for laws and policies which had ‘inflicted profound grief, suffer-
s establish a mechanism for determining native title claims
ing and loss on these our fellow Australians’. Actions
s provide for the validation of past grants of
such as these by politicians and parliament are a
property interests that may be thrown into
way of bringing about social, if not legal, change.
doubt because of the recognition of native title. The Act stopped short of defining native title
Major High Court decisions on native title and subsequent legal developments
and created the Native Title Tribunal to determine the validity of native title claims. If native title holders are unable to reclaim their lands and thus exercise their rights, the tribunal determines the compensation to be paid.
Native title was not recognised in Australia until 1992, when the High Court, in the Mabo decision,
The Wik case
overturned the doctrine of terra nullius.
The Mabo decision and the Native Title Act resulted in other Aboriginal groups attempting to reclaim
106
The Mabo case
land. The Wik and the Thayorre people launched
The Mabo case is important because it led to the
a case against the Queensland government in
introduction of native title legislation. It is also
1996 (Wik Peoples v Queensland [1996] HCA 40),
significant because it gave recognition to the
claiming native title rights to land that was being
Indigenous inhabitants of Australia.
used by pastoralists, under pastoral leases. Under
In this case, the High Court recognised the
a pastoral lease, the government owns the land
existence of native title for a group of Murray
but the farmers have exclusive right to use it. The
Islanders in the Torres Strait. Eddie Mabo argued
Federal Court ruled that the existence of pastoral
that they could prove uninterrupted occupancy
leases extinguished the right to native title. This
of traditional lands, and that the state legislation
decision was appealed to the High Court, which
annexing the islands did not extinguish their pre-
ruled that the Wik and Thayorre people were
existing rights to it.
entitled to their traditional lands. The court found
The case required the High Court to consider
that pastoral leases and native title could coexist,
the legality of the declaration of terra nullius. The
but that when conflict arose the pastoral leases
court ruled that the islanders were the traditional
would prevail.
owners of the land and that they had the right
While the Wik decision did not grant automatic
to possess and occupy the islands and enjoy use
title over Crown land, it caused concern among
of their traditional lands. The High Court also
pastoralists and mining companies that they
established guidelines for future claims of native
would have to enter into lengthy negotiations with
title. These guidelines included the provision of
Indigenous people over access to and use of land.
compensation where the native title rights were
In response to this concern in rural Australia,
taken back by the federal government.
the federal government enacted the Native Title
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The
Yorta
Yorta
then
R EVI EW 5 . 3
Native Title Act 1993 (Cth) but also introduced
appealed to the High Court
some changes on its own. There was much debate
(Members of the Yorta Yorta
‘self-determination’. Which
in parliament over this Act before it was passed.
Aboriginal Community v Victoria
Indigenous groups have
While the government had a large majority in the
[2002] HCA 58). They claimed
gained greater recognition in
House of Representatives, it did not enjoy as much
that the trial judge and the
support in the Senate.
majority of the Full Court had
The main provisions of the Act are as follows:
been wrong in requiring them to
s It extinguished native title over any land that
prove continuous observance of
was considered privately owned prior to
traditional laws and customs in
1 January 1994.
relation to land. The High Court
1 Define ‘native title’ and
these areas?
The leg al s y s tem
Amendment Act 1998 (Cth), which amended the
2 Assess the significance of the Mabo decision. 3 What was the impact of the Wik case? 4 Explain how a government
s When native title exists alongside a pastoral
handed down its decision in
might respond to the
lease, the pastoralist is allowed to use the
December 2002 and upheld the
following. Give examples.
land for primary production without having to
decision of the Federal Court by
a a court decision whose
consult people who have native title interests.
a majority of five to two.
outcomes or likely
s Tough tests were imposed to determine right
In its decision, the High
to native title. At least one member of the
Court considered the meaning
claimants must prove a continuous link with
of the phrase ‘traditional laws
the traditional lands.
and customs’ and what was
consequences are as yet
required for proving continuous
unclear
consequences the government supports b a court decision whose
The Yorta Yorta native title case
observance of these laws and
The Yorta Yorta people are Indigenous Australians
customs. In its decision, which
within society about a court
whose traditional lands are located in north-east
was to influence future native
decision
Victoria. They applied to the Native Title Tribunal
title claims, the court held that in
for determination of native title in respect of public
order to prove native title, claim-
land and water in February 1994. The Yorta Yorta
ants must establish there has
6 Outline the legal history of
Aboriginal community claimed that some areas of
been an acknowledgment and
their claim to native title.
state forests and waterways in northern Victoria and
observance of laws and customs
southern New South Wales were their traditional
on a substantially uninterrupted
lands. The Native Title Registrar, who assesses
basis since the arrival of British
claimants’ applications to the Tribunal, accepted
sovereignty. The fact that these
their application in May 1994 and it was subject to
laws and customs have been
mediation from September 1994 until May 1995. It
passed down orally is not suf-
was then referred to the Federal Court.
ficient; claimants must show that their way of life
c the concerns of groups
5 Identify the native title claim of the Yorta Yorta community.
7 Explain the reasons their claim was denied. 8 How does this decision affect other native title claims?
The claim was dismissed by the Federal Court.
is influenced by these traditions. In this way, the
Justice Olney concluded that the evidence did
High Court decision clarified the law with respect
not support the claim, as the Yorta Yorta people
to the evidence required to prove native title.
had stopped occupying their traditional lands in the 19th century. He said: ‘The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs.’
The National Native Title Tribunal The National Native Title Tribunal is a federal
The Yorta Yorta people appealed this decision
government agency set up under the Native Title
but the Full Court of the Federal Court upheld
Act 1993 (Cth). It mediates native title claims under
Justice Olney’s findings.
the direction of the Federal Court of Australia.
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To p i c 1: L a w r e f o r m a n d n a t i v e t i t l e
The aim of the Native Title Tribunal is to help
This Act established a system of land councils.
to resolve native title issues. The tribunal plays a
The NSW Aboriginal Land Council has the power
variety of roles; for example, it acts as an arbitrator
to make claims on Crown land, approve or reject
in some situations where the people involved cannot
agreements to allow mining on Aboriginal land,
reach agreement about proposed developments. It
conciliate disputes, and advise the state government
also assists people who want to negotiate other sorts
on land rights. The Act provided for the ownership
of agreements, such as Indigenous land use agree-
of reserve land to be transferred to the Aboriginal
ments. If requested, the tribunal will assist people in
people, through a local or the state Land Council, but
negotiations about proposed developments (future
in fact only a small percentage of land has been so
acts), such as mining. It is not a court and does not
transferred. Section 28 of the Act provided for 7.5%
decide whether or not native title exists.
of land tax in NSW to be paid to the state Aboriginal Land Council to meet administrative costs and to
Native title legislation
finance land purchases and future development, but this ceased in 1998 due to a ‘sunset clause’ in
State legislation
the Act, and s 28 was repealed in 2001.
As discussed, the Mabo and Wik decisions led to
The Act also permits local Land Councils to
Commonwealth legislation in the area of native
negotiate agreements with the owners of land to
title and self-determination for Aboriginal people
give Aborigines access to the land for the purpose
and Torres Strait Islanders. State legislation has
of hunting, fishing or gathering.
also been enacted to give rights to and protect the interests of Indigenous Australians.
Federal legislation
The National Parks and Wildlife Act 1974 (NSW)
Federal parliament has enacted legislation to pro-
provides for the protection of places and relics
tect all parties involved in and affected by native
which are of significance to Aboriginal culture.
title claims. As discussed above, the Native Title
Under this Act, it is an offence knowingly to
Act 1993 (Cth) was the Australian government’s
destroy, disturb or remove these objects or to
response to the High Court’s Mabo decision. The
destroy, deface or damage these places.
Act provides for the recognition of native title and
The Aboriginal Land Rights Act 1983 (NSW) recognises that: s land was traditionally owned and occupied by Aboriginal people s land has spiritual, social, cultural and economic significance to Aboriginal people s it is appropriate to acknowledge the importance of land to Aboriginal people
the integration of this form of property right into the land title system. The Howard federal government responded to the High Court’s Wik decision with the Native Title Amendment Act 1998 (Cth). The amendments incorporated the High Court’s decision that native title rights could coexist on land held by pastoral leaseholders. The same government amended the
s government decisions made in the past have had
legislation by the Native Title Amendment Act 2007
a negative effect on Aboriginal land ownership.
(Cth) and the Native Title Amendment (Technical Amendments) Act 2007 (Cth). The 2007 changes
l eg a l l in k s
were intended to improve the overall efficiency of the processes involved in claiming native title. The Federal Court of Australia’s website provides information about the processes in claiming native title: www.fedcourt.gov.au/litigants/ native/litigants_nt_what.html
Commonwealth legislation has also been enacted to provide some Indigenous rights over bodies of water. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is used to protect areas of water and of land that have cultural significance for Indigenous people.
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Native title as a collective right A collective right is one that is claimed and shared by a group of people. Native title is a
The leg al s y s tem
collective right as it cannot be claimed by an individual, only by a group (for example the Wik people). All members of the group share the rights that are gained. However, despite native title being a collective right, an individual can bring a claim before the courts, as seen in the Mabo case. As the individual is acting on behalf of the group, all members of the community that he or she represents will share the rights gained.
Figure 5.8 An Aboriginal boy fishes in Manbalbirrlarri billabong AT$JUKALAJARRANG !RNHEM,AND4HISISAVERYSPECIALPLACEFORTHE Ganalbingu clan with important rock art, burial caves, secret and sacred sites.
Ef fec t iveness of law reform i n re l a t io n to n a t i ve t i t le As we have seen, there has been progress in the
over this land they excluded the Yorta Yorta
area of law reform relating to native title. However,
community. This is a problem faced by other
this progress has been relatively slow. Due to the
Aboriginal and Torres Strait Islander communities
very nature of the law, all those involved in native
in claiming traditional ownership.
title claims must be considered when proposing
It is undeniable that major
and enacting new legislation, and as such, the
steps have been taken with
Native Title Act 1993 (Cth) and its amendments
respect to native title, by both the
1 Draw a timeline showing the
recognise not only the rights of the traditional
judicial and legislative branches
recognition of native title
owners, but also those of current landholders.
of government. However, those
rights and self-determination
Although one of the biggest legal steps forward
interested in reform are also faced
for Aboriginal and Torres
was the overturning of the concept of terra nullius
with the fact that the law protects
Strait Islanders in Australia
in the Mabo case, the initial use of terra nullius by
the property rights of people
and in New South Wales.
the British has continued to be a major stumbling
who themselves had nothing to
2 Outline the major legislation
block by those communities making native title
do with colonial dispossession,
governing native title at the
claims. Consider the Yorta Yorta people’s claim for
but whose interests are at odds
federal and state levels.
their traditional lands in Victoria. The court cases
with native title claims. Future
3 Outline the major federal and
took eight years and the claim was eventually
progress is likely to depend on
state legislation protecting
denied. The basis of the High Court’s determination
the articulation and maintenance
places and objects of cultural
was that the Yorta Yorta could not prove a recent
of new concepts of justice, and
significance for Indigenous
history of traditional ownership of this land. The
sustained public commitment to
people.
main reason that they could not prove this history
electing governments that will
of ownership was because when the British took
legislate for those aims.
R EV I EW 5 . 4
4 In what way is native title a collective right?
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To p i c 2 : L aw r e f o r m a n d s p o r t
Co n d i t i o n s t h a t l ea d t o l aw ref o rm i n s por t ‘Australia’ and ‘sport’ are terms that are almost
the sponsor to gain exposure to millions of viewers.
synonymous. Sport is a part of Australian culture
The standards to which players and coaches are
and Australians have performed incredibly well
held go beyond the ordinary expectations of
on the world stage for many years. Winning
etiquette owed to the team and to competitors, as
world championships is a matter of great pride,
not only the club but the sporting code and the
particularly in swimming, rugby union, netball
sponsoring companies are brought under scrutiny
and women’s basketball. In addition, Australian
by antisocial behaviour.
sport has become ‘big business’. The rise of full-
Athletes’ movements off the field are just as
time or professional sport means that athletes such
closely scrutinised by the public and fans as their
as Darren Lockyer (NRL), Kieren Jack (AFL) and
on-field performance. The media are not hesitant
Mortlock Stirling (Super 14) are ‘at work’ when we
about reporting behaviour that is not appropriate
watch them playing live or on a television screen.
for a ‘role model’, and some players such as Todd
These athletes are considered employees and their
Carney of the NRL and Ben Cousins of the AFL have
teams or organisations are their employers.
incurred suspensions from their sporting bodies
Large corporations now favour associating sponsorship the support of an individual, event, or organisation financially or through the provision of products or services
for drink-driving and drug use, respectively.
themselves with a team or competition through
Government has also taken a greater role in
sponsorship deals that provide material support
sport over the past three decades. The Australian
in exchange for advertising. The names and logos
Institute of Sport (AIS) was established in 1981
of national and multinational companies can be
after more than eight years of government-
seen on football players’ jumpers and prominently
commissioned studies of sports institutes in
displayed around the grounds; a major sponsor of
Europe. The purpose of the AIS is to develop the
Cricket Australia has been a fried chicken chain.
highest quality of sport by providing facilities and
These multimillion-dollar sponsorship deals enable
funding to athletes and organisations.
Figure 5.9 -ICHAEL#LARKE 3ERENA7ILLIAMS !&,FOOTBALLERS *ASON!KERMANIS"ULLDOGS AND +IEREN*ACK3YDNEY3WANS
110
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SPORT LAW
Discrimination laws (e.g. Trudy Gardner case)
Contracts (e.g. Sonny Bill Williams)
Torts
e.g. Trespass against person – assault/battery
The leg al s y s tem
Criminal offences (e.g. drug use)
e.g. Negligence – Richard Vowles
Figure 5.10 Sport law spans a number of different areas of law.
In addition to changes in the way sport is seen,
$450 000 per year by the Canterbury Bulldogs in
there have been broader social changes that affect
the NRL. Although contracts are broken from time
the ways in which sport and the law interact.
to time in many areas of business, often leading
Greater willingness to hold others accountable
to civil litigation, it came to most fans as a huge
for harm and to seek civil remedies for real or
surprise when Williams broke his contract in 2008
perceived wrongdoing has affected both amateur
by leaving Australia to play rugby union in France,
and professional sport.
without even telling the club or his team-mates of
‘Sport law’ ranges over the areas of contract law,
his decision.
tort law, and the criminal law, and encompasses
Many sporting contracts contain ‘get-out’ clauses
efforts to promote safety in sport, to provide
for both parties so that if players are injured or
remedies for those injured, to regulate behaviour on
playing poorly, clubs may release them from their
tort law the body of law that deals with civil wrongs including negligence, defamation, trespass and nuisance civil litigation court action brought to remedy a wrong or breach of contract
and off the field, and to ensure equal opportunity and fair treatment for individuals and groups who engage in sport. As social attitudes change, the law must develop accordingly. We will look at some of the areas in which it has had to accommodate new patterns and demands. As discussed in Chapter 4, law reform can be prompted by the recommendations of specialised law reform bodies or various other agencies or agents, and it can be brought about directly by court decisions or legislation.
Civil law: breach of contract Professional athletes are required to sign contracts that legally bind their playing services to a club and a competition. Sonny Bill Williams was paid
Figure 5.11 Sonny Bill Williams lost a large sum of money when he breached his contract with the NRL Bulldogs.
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To p i c 2 : L a w r e f o r m a n d s p o r t
contempt of court words or actions that show a disregard for the authority of the court or interfere with its powers express consent consent given directly, either oral or written
playing lists. However, in this case, there was no
the safety of players. In rugby union, eight players
‘get-out’ clause; Williams sought a release from his
pushing against each other creates a dangerous
contract to play for another team for a far greater
situation and refeeres must follow certain proce-
salary.
dures before they allow a scrum to begin.
The chief executive officer of the NRL called on
Amateur and professional players give express
the International Rugby Board, the governing and
consent to acts that would constitute the basis for
lawmaking body for rugby union, to stop Williams
the criminal offence of assault – an indictable
from switching codes. The board said it had no
offence – when done in a non-sporting context.
jurisdiction over individual clubs’ contracts.
When players participate in various sports, they
The Bulldogs and the NRL obtained a temporary
accept the risk of harms that can occur within
injunction preventing Williams from playing for
the course of the game. In contact sports such as
the French club, Toulon, and initiated proceedings
rugby league, rugby union and Australian Rules
in the NSW Supreme Court. The consequences
football, players can break bones, be rendered
of breaching the injunction could have been
unconscious and in extreme cases, be injured to
contempt of court proceedings against Williams,
the point of quadriplegia. For example, grabbing a
or the Bulldogs may have been able to seize his
person and slamming him to the ground would be
assets. As Williams is an outstanding player who
the basis of an assault charge if inflicted without
draws many fans, and the Bulldogs had invested
consent. However, players give express consent to
much time and money in his training
tackles in rugby. They do not give express consent
and development, his breach of
to behaviour that is prohibited by the rules.
REVIEW 5.5 1 Define the term ‘sport law’.
contract could have entitled them to
2 What are some of the
damages.
consequences of sport being
In 2001, John Hopoate, an NRL player for the Sydney-based Wests Tigers, was brought before
eventually
the NRL Judiciary for inserting his finger between
reached between the parties, with
opposing players’ buttocks after they had been
Williams being ordered to pay
tackled. Hopoate was caught on video clearly
resolving a contract dispute
$750 000 to the Bulldogs, and agree-
carrying out the offences and was found guilty of
were attempted in the Sonny
ing not to play in the NRL before
‘unsportsmanlike interference’. He maintained that
Bill Williams case? What was
2013. His contract with the Bulldogs
he had done nothing wrong and stated, ‘I’m a great
the final outcome?
would have expired in 2012.
believer in what happens on the field should stay
‘big business’? 3 What mechanisms for
A
settlement
was
there.’ He was suspended from play for 12 weeks.
Harm suffered in sport indictable offence a serious criminal offence that requires ANINDICTMENTAFORMAL written charge) and a preliminary hearing; indictable offences are typically tried before AJUDGEANDJURYAND ARESUBJECTTOAGREATER penalty
There is a long-standing adage in sport that ‘what
Avenues for justice: civil or criminal?
happens on the field stays on the field’. It means
Interference with another person outside the
that if there is an altercation or disagreement
rules of sport, or threats that cause a person to
between players during a competitive match, it
apprehend immediate and unlawful violence, can
is to be forgotten when the full-time siren sounds
constitute assault, leading to criminal charges.
and complaints are not to be made to referees,
However, those involved in sport often choose to
sporting administrators or indeed police.
use the professional judicial mechanisms, such as
Rules of games or sports are different from laws. However, when made by sporting bodies, they
112
league tribunals, to enforce codes of behaviour and impose sanctions.
are often referred to as ‘codes of conduct’ that all
Others have chosen to sue other players or clubs
players are required to follow. Such rules may also
for damages and loss of wages through the civil law
include specific rules in contact sports that concern
system. As discussed in Chapter 3, the standard
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of proof required of the prosecution in a criminal case is ‘beyond reasonable doubt’. In a civil case, the plaintiff need only prove the defendant’s liability ‘on the balance of probabilities’. This just means that it is more probable than not that the
The leg al s y s tem
defendant is responsible for the wrong suffered – an easier requirement to satisfy. In
addition,
while
there
are
criminal
compensation schemes for victims, maintained and administered by the state, the sums involved are generally much lower than the amount of financial compensation that a successful plaintiff could
receive
in
damages.
The
maximum
compensation available in NSW for a victim of a violent crime is $50 000. Since professional athletes can earn hundreds of thousands of dollars a year, victims’ compensation is seen as inadequate. When pursued as a civil case, direct contact with a person’s body without the person’s consent is one of the intentional torts of trespass
Figure 5.12 Tackles in many contact sports are fairly common.
to the person. Another avenue that may be taken in the civil
rugby league in NSW. Kennedy sued both Pender
law is negligence, where a club, league or other
and the Narooma Rugby League Football Club for
agency involved in sport has failed to fulfil its
$40 000 in medical bills. The club’s lawyers argued
duty of care to the participants. In a high-profile
that because the players were volunteers, the club
NSW case (Rogers v Bugden and Canterbury-
could not be responsible for their conduct.
Bankstown (1993) ATR 81-246), Steve Rogers sued
The NSW District Court held that although
Mark Bugden after a high tackle from Bugden in
players were not paid to play, the benefits that
a 1985 rugby league match broke his jaw. Rogers
they derived from the relationship were significant
experienced dental problems, surgery, pain and
enough to form a relationship of employment, and
distress. Compensatory damages of more than
Pender was doing what the club expected him
$68 000 were awarded and the court held that
to do.
Bugden’s club bore vicarious liability for the assault because Bugden’s actions were done in the course of his employment as a player. His contract professional
athletes
have
vicarious liability the legal liability imposed on one person or agent EGANEMPLOYER for the wrongful acts of another, when those acts were done within the scope of the legal relationship between them, such as employment
1 Consider the idea that ‘what happens on
authorised the use of force when tackling. Other
R EVI EW 5 . 6
trespass to the person a tort involving direct contact with a person’s body without that person’s consent
sought
damages for loss of wages, in addition to medical expenses, pain and suffering. Even in the ‘non-professionalised’ world of
the field, stays on the field’. Is it ever an appropriate approach to behaviour in sport? Discuss, with illustrations. 2 Explain why athletes would rather pursue
amateur sport, material loss may be considered in
action in civil law courts rather than
the decision as to the quantum of damages awarded.
through the criminal justice system.
In 1997, Darren Kennedy’s jaw was broken by a
3 Explain what it means for a club to be
high tackle by Gary Pender in an amateur game of
vicariously liable for the acts of its players.
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To p i c 2 : L a w r e f o r m a n d s p o r t
Equal opportunity in sport
the average boy has greater lean body mass than the average girl, and there is an appreciable difference in their performance in sports. The
In 2003, a junior Australian Rules Football league in Victoria banned a 13-year-old from playing in its competition because of her sex. The player, Helen Taylor, along with two other girls aged 14 and 15, challenged the ban. involved in sport and the range of sports open to female players have increased dramatically over the past few decades, there are still some challenges Go to www.austlii.edu.au/au/legis/
to
be
addressed,
socially and legally.
girls. He concluded that the differences are not sufficiently great in the under-14 age group, but
Civil and Administrative Tribunal
look at the Anti-Discrimination Act
(Taylor v Moorabbin Saints Junior
1977 (NSW).
Football
1 Discrimination on the basis
Victoria Ltd [2004] VCAT 158),
League
and
Football
of sex is explicitly prohibited
questioned
by this Act. What other
all girls aged 12 or over from
characteristics of persons
competing alongside boys in
besides their sex do not justify
the junior competitions. Despite
discrimination, according to the
anti-discrimination legislation in
Act?
the various states and territories
the
group. So excluding Helen Taylor was unlawful, though not the exclusion of the other two girls. The judge added that it would be preferable if Football Victoria would, instead of excluding girls, give them the choice of whether to participate. While the decision was a victory for Helen
Taylor’s case, in the Victorian
nsw/consol_act/aa1977204/ and
2 Are any of these characteristics
is a lawful reason to separate the boys from the
they are sufficiently significant in the under-15 age
While both the number of girls and women
RES E A RCH 5.1
judge’s task was to determine at what age there
exclusion
of
and at federal level, all Australian
Taylor, questions remain about its application to other sports, and how great the differences between boys’ and girls’ physical attributes would have to be in other sports in order to justify an exception to the relevant legislation. There are also differences in the legislation of the various states and territories. In NSW, the exception to the prohibition of sex discrimination is much less specific, and allows female (or male) players to be excluded in any circumstances. Section 38 of the Anti-Discrimination Act 1977 (NSW), headed ‘Sport’, states:
relevant to discrimination
jurisdictions contain exceptions
within sport? Can you imagine
allowing exclusions on the basis
Nothing in this Part renders unlawful the exclusion
situations in which they might be
of sex. The Equal Opportunity
of persons of the one sex from participation in
relevant? Discuss.
Act
the
any sporting activity not being the coaching of
exclusion of one sex from a
persons engaged in any sporting activity, the
in any way from these other
sport if strength, stamina or
administration of any sporting activity or any
characteristics? Why or why not?
size is relevant. Post-puberty,
prescribed sporting activity.
3 Is a person’s sex different
1995
(Vic)
permits
Agencies of law reform i n spor t
114
The Australian Human Rights Commission
Opportunity Commission (HREOC) prior to 2008.
The Australian Human Rights Commission is an
discrimination complaints and breaches of human
independent statutory organisation, established in
rights; holds public inquiries; provides advice
1986. It was called the Human Rights and Equal
and submissions to parliament; and conducts
It investigates and reports to federal parliament about issues of human rights compliance; resolves
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It provides advice to the government and funding
issues. These issues cover a broad range of areas,
to national sporting organisations. The Australian
including employment, education, the provision of
Institute for Sport (AIS), mentioned above, is one
goods and services, and sport.
of its divisions.
The Human Rights Commission can investigate
As a result of the netball ban, the ASC was asked
complaints of discrimination and assist in reach-
to investigate the issues surrounding pregnant
ing agreement between a complainant and the
athletes. It hosted the National Forum on Preg-
organisation or company against which the com-
nancy in Sport in August 2001, with participants
plaint is made. It does this through conciliation,
from government, industry and non-government
in which it acts as an impartial referee while the
organisations. The conclusions formed the basis
parties talk through their concerns and look for
for a set of guidelines for the Australian sporting
solutions.
industry on pregnancy in sport.
In 2001, the All Australia Netball Association
In addition to clearing the way
(AANA) issued a ban to prevent pregnant women
for pregnant women to continue
from playing in the Trophy competition. This
to play sport, the guidelines offer
included the captain of the Adelaide Ravens, Trudy
information and advice to protect
Gardner, who was 15 weeks pregnant at the time.
sporting clubs. As employers,
Gardner lodged a complaint with HREOC,
clubs are concerned to avoid
claiming discrimination on the grounds of her
being sued for negligence if a
pregnancy under the Sex Discrimination Act 1984
player suffers foreseeable harm
(Cth). Gardner and AANA were unable to resolve
to herself or her foetus while
the disagreement in that forum and she took the
engaging in sport.
conciliation a method of legal dispute resolution involving a third party who helps the parties to reach agreement
The leg al s y s tem
research into human rights and discrimination
R ESEARC H 5 . 2 Go to www.humanrights.gov.au and research other areas dealt with by the Australian Human Rights Commission in relation to sport. You might first try searching the site using the word ‘sport’.
them to court, seeking an injunction to allow her to continue to play pending the outcome of her complaint. She missed three games due to the ban, but the Federal Magistrates’ Court granted the interim injunction. As a result of missing those three games, Gardner lost match payments and sponsorship. Gardner successfully sued the Netball Association in 2003 (Gardner v AANA Ltd [2003] FMCA 81), seeking damages for distress, pain and suffering, as well as the loss of the match payments and sponsorship money. The Federal Magistrates’ Court found that the prohibition had breached ss 7 and 22 of the Sex Discrimination Act.
The Australian Sports Commission The Australian Sports Commission (ASC) is a statutory authority of the Australian government. Established through the Australian Sports Commission Act 1989 (Cth), the ASC plays a role in the development and operation of sport at all levels.
Figure 5.13 Netballer Trudy Gardner, who lodged a complaint with HREOC, claiming discrimination on the grounds of her pregnancy
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To p i c 2 : L a w r e f o r m a n d s p o r t
Mec h a n i s m s o f l aw r e f o r m i n spo r t The courts
s commercial,
As discussed in Chapter 4, the courts’ role in interpreting legislation as applied to a particular case is to clarify its meaning. Where a higher court sets a precedent, it is making a statement about the purpose of the legislation and the way the law should be applied in the future. A court’s consideration of a situation and the arguments for and against a claim can reveal unfairness or injustice in the legislation itself. The Federal Sex Discrimination Commissioner in 2003, Pru Goward, commented
on
Gardner’s
case,
saying that it was good to see the courts developing case law around Figure 5.14 Nick D’Arcy was convicted of inflicting bodily harm and subsequently dropped from the Olympic Swim Team.
the
Sex Discrimination Act.
The
circumstances of pregnant women continuing to pursue sport at high levels constituted a new appliation of the anti-discrimination legislation.
RE VIE W 5.7
including
contract
disputes,
sponsorship, and television rights, as well as civilliability claims, such as athletes’ accidental injuries during competition s disciplinary, including drug-related problems, violence on the field, and abuse of referees. Disciplinary cases are generally first dealt with by the ‘competent sports authorities’, for example the Australian Olympic Committee. Appeals then may go to the CAS. Many of the disputes brought before the CAS are quite serious. A recent case is that of Nick D’Arcy, a swimmer chosen for the Australian Olympic team in 2008. At a celebration party on the night he was chosen, D’Arcy was involved in an argument over alcohol with a fellow swimmer. D’Arcy punched Simon Cowley, breaking his nose, eye socket and jaw, and was subsequently convicted in the NSW Local Court of recklessly inflicting grievous bodily harm. The Australian Olympic Committee dropped him from the Olympic team for bringing the team into disrepute. D’Arcy unsuccessfully appealed to the Court of Arbitration for a place on the 2008 Olympic team. No precedent was set in this case.
that the law as it relates to
The Court of Arbitration for Sport
pregnant athletes should be
The Court of Arbitration for Sport
different from ordinary laws
(CAS) was established in 1984 as part
protecting equal opportunity
of the International Olympic Commit-
for women athletes?
tee. It is an international arbitration
Parliaments
2 What types of matters
body set up to settle disputes related
As we have seen, matters sometimes come before
are heard by the Court of
to sport. It is based in Lausanne,
a court before they have been considered by
Arbitration for Sport?
Switzerland, and has courts in New
parliament. When a legal decision reflects new
1 How could it be argued
3 Is a fight on a football field in
116
After discussions with Swimming Australia, the sport’s governing body, D’Arcy agreed that he would not swim competitively until August 2009.
York City and Sydney, as well as ad
social patterns or attitudes, parliaments may
a close match different from
hoc, temporary courts in Olympics
enact, amend or repeal legislation to ensure that
a fight on a street corner and
host cities. The CAS settles disputes
the statute law stays current and credible. This
if so, should penalties for
through arbitration, where the parties
often happens after extensive consultation with
fights on the sporting ground
have agreed to its jurisdiction, and its
bodies such as law reform commissions, human
be less than for assaults
decisions are binding. It hears two
rights commissions, or – in the case of sport law –
committed on the street?
types of dispute:
the Australian Sports Commission.
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Ef fec t iveness of law reform i n t he s p o r t i n g wo r l d Breaches of contract in the sporting world may have different particulars from breaches of contract in other areas of business, but the mechanisms and remedies are not markedly different. The Sonny Bill Williams case examined above illustrates the increasingly global nature of commercial sport, and may be interesting because
where no one is at fault – for example where a
The leg al s y s tem
Contract
tackle is perfectly within the rules of the game – are just as much in need of financial assistance as those awarded damages, yet insurance coverage may be inadequate to their needs. While these are legitimate concerns, it is hard to see how law reform would be the appropriate means of addressing them.
it crossed jurisdictional boundaries: two countries and two different rugby codes. However, it is not clear that there is a significant need for law reform in this area.
Equal opportunity in sport Local, national and international interest in
Harm suffered in sport
ensuring women’s equality with men in all areas,
A greater readiness to sue and the professional-
legislation at both state and federal level. Australia
isation of sport are two social factors contributing
is a signatory to the United Nations Convention on
to players’ preference for civil remedies rather
the Elimination of All Forms of Discrimination
than the criminal law. While the sums of money
Against Women, and domestic legislation imple-
involved are relatively large in professional sport,
menting this treaty makes discrimination on the
the purpose of tort law remains the same: to
basis of sex unlawful.
compensate people for losses or damage suffered as a result of wrongs done to them.
including participation in sport, has prompted
In addition, legislation such as the Racial Discrimination Act 1975 (Cth) and the Disability
Clubs, teams and referees are under a duty of
Discrimination Act 1992 (Cth) protects other groups
care to safeguard their players’ health and welfare,
that have historically been disadvantaged. The
especially with respect to reducing the risk of
work of statutory bodies such as the Australian
injury. In 1998, a rugby union player, Richard
Human
Vowles, successfully sued the Welsh Rugby Union
is vital in addressing issues of
for damages after he became a quadriplegic
equal opportunity, and court
in a scrum that collapsed, breaking his neck.
cases such as Trudy Gardner’s
Go to www.sportslaw-uk.co.uk/
According to the rules, the referee should not have
have provided further factors
Richard%20Vowles%20report.
allowed that scrum if he considered that it would
for parliaments to think about
pdf and review the details and
be dangerous to continue.
when drafting legislation. In the
comments on the Richard Vowles
One consequence of widespread recourse to the
course of law reform, parlia-
case.
civil law is fear of lawsuits. For example, schools
ments must balance concerns
1 Explain why the referee was
may decide to phase out contact sports such as
about negligence claims against
rugby if claims by students injured while playing
the need for fairness.
Rights
Commission
R ESEAR C H 5 . 3
held liable for Vowles’ injury. 2 What is ‘contributory
become a common occurrence. Another concern
negligence’, and why was it
is that players who are seriously hurt in situations
relevant in this case?
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Co n d i t i o n s t h a t l ea d t o l aw r e f o r m r e l a t i n g t o s exu a l a ss a u l t One of the central aims of the criminal justice
Crisis Centre in that year. According to Australian
system is to prosecute criminal offenders on behalf
Bureau of Statistics (ABS) figures, only 15–20% of
of the victims and the community. Throughout
sexual assaults are reported so the real rate could
this process there is a tension between the rights
be around 50 000 to 60 000 incidents a year.
of the accused and the interests of individuals and the community, and getting this balance right is a constant challenge for the state.
Table 5.2 Reports to the NSW Rape Crisis #ENTRE*ULYTO*UNE
There has been significant law reform in relation sexual assault a general term for criminal offences involving unwanted sexual contact; acts include unwanted touching or groping, indecent acts of other kinds, and rape
to sexual assault offences over the past decade. This has been motivated by perceptions that the criminal justice system was failing to deliver just outcomes for victims and the community. Sexual offences are the least reported crimes in NSW and have the lowest conviction rates. This is compounded by delays in cases, contributing to a low rate of satisfaction on the part of victims. In 2004–05 most of the major categories of crime experienced
declines.
For
example, the number of breakins fell 11%, armed robbery without a weapon fell 18.2%, and stealing from a person fell 21.4%. These declines are in stark contrast to the figures for sexual offences. According
to
the
NSW
Bureau of Crime Statistics, there were around 9200 recorded
criminal
incidents
of
various sexual offences in NSW in the year ending September Figure 5.15 Sexual assaults are the least reported crimes in NSW.
118
Callers New callers Repeat callers Total callers Telephone Online E-mail
Presenting issues (new callers) Sexual assault Childhood sexual assault Gang rape Drugged and assaulted Supporters – professional and other Other When the assault occurred (new callers) ,ASTDAYS DAYSTOMONTHS -ORETHANMONTHS
Age (new callers) TO n n n n
2004. There were another
New South Wales Rape Crisis Centre – www.nswrapecrisis.
3352 calls made to the Rape
COMAU,ATEST.EWS3TATISTICS3TATISTICS*ULY *UNEHTM
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This is an extremely low rate of reporting. According to the SBS television program Insight on 25 October 2005, it can be attributed to the following factors. A lot of victims do not report because they do not believe they are going to win,
The leg al s y s tem
they believe it will be too much trouble, or they cannot face it emotionally. Compounding this is the fact that in 70 per cent of cases, the offender is known to the victim, making proof more difficult. The results of a statewide survey of victims and service providers, conducted by the NSW Criminal Justice Sexual Offences Taskforce in 2005, revealed that victims were ill-served by the legal system in terms of their practical needs. There was no established system for addressing the ‘multiple needs’ of some victims, including translation, mental health support, accommodation and counselling. They had insufficient or inaccurate information about processes for getting help.
Figure 5.16 The lack of doctors specialising in sexual assault has the potential to reduce the LIKELIHOODOFJUSTOUTCOMESFORVICTIMSOFSEXUAL assault.
Moreover, only 2 per cent of accused sex attackers were convicted in 2004. The Director of Public Prosecutions (DPP) will
examiners have training in clinical practice and
generally prosecute if there are prospects of a
forensic assessments and routinely give evidence
conviction and it is in the public interest. Where
in court, this initiative was seen by some as a
the victim knows the attacker – the vast majority
‘resource efficiency’ measure.
of reported cases – much of the case will rely on
As a result of these and other factors, most
one person’s word against that of another unless
formal complaints of sexual offences do not result
there is convincing physical evidence. Advocates
in formal investigations and most investigations
for victims argue that cases likely to proceed
do not lead to trials. The 2005 national Personal
involve a stranger, because it is easier to establish
Safety Survey reported that only 19 per cent of
that the sex was not consensual, the assaults are
women who had experienced sexual violence by a
often of a more severe nature, and there is more
male offender had reported this to the police.
likely to be strong physical evidence. Physical evidence often poses another major
In NSW in 2004 the number of sexual offences
obstacle. Victims of sexual assault will generally
reported to police exceeded the number of proven
need to be physically examined and questioned
charges by about ten to one. … [A]pproximately
in detail in order to obtain evidence that can be
8% of sexual offences committed against children
used in court.
and 10% of recorded sexual offences against adults
In addition, there has been a real lack of state resources provided to doctors who work in sexual assault services. Beginning in 2004, the NSW Department of Health introduced training for
reported to police are ultimately proven at court. *ACQUELINE&ITZGERALD @4HE!TTRITIONOF3EXUAL/FFENCES FROMTHE.EW3OUTH7ALES#RIMINAL*USTICE3YSTEM Contemporary Issues in Crime and Justice *ANUARY NSW Bureau of Crime Statistics and Research
‘Sexual Assault Nurse Examiners’ of sexual assault victims, instead of doctors. Although the nurse
See Figure 5.17 on the following page.
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Given the estimates of the number of unreported
)NCIDENTSCHARGES
incidents, this conviction rate represents a small
proportion of incidents that are occurring. It is worth asking why this is the case, especially when
compared to all other categories of crime.
R EV I EW 5 . 8
1 Give some reasons for the low percentage
of sexual crimes that are actually reported to police.
Recorded incidents
Proven charges
2 What are some of the difficulties in proving a sexual assault case when the victim knows the attacker?
HTTPWWWAGDNSWGOVAULAWLINKBOCSARLL?BOCSARNSFVW&ILES#*"PDFlLE#*"PDF
Figure 5.17 Number of recorded incidents and proven charges for SEXUALANDINDECENTASSAULTSIN.37 n
3 Why is specific training important for doctors and nurses dealing with sexual assault victims?
Age n c i es o f l aw r e f o r m r e l a t i n g to sexua l a ss a u l t The Criminal Justice Sexual Offences Taskforce
circuit television altered the impact of the evidence as it was received – that is, whether it was likely to reduce the empathy the jury might have for the
The Criminal Justice Sexual Offences Taskforce was
victim or the accused. The AIC found that there was
established in 2004 by the NSW Attorney General
no real difference in jury responses. These findings
to investigate issues relating to sexual assault and
went some way to convincing the government that
the prosecution of these crimes. Its task was to
this could be a reliable mode of delivering evidence
advise the Attorney General on how the criminal
for traumatised victims who did not want to be in
justice system could become more responsive to
the same room as the accused.
victims of sexual assault without undermining the right of the accused to receive a fair trial. The Taskforce had input from a broad crosssection of government and non-government organisations, in an effort to obtain various viewpoints
The NSW Rape Crisis Centre has been at the fore-
on the criminal justice system. It produced 70
front of reforms to the way sexual assault matters
recommendations for implementation. As a result
are dealt with by the NSW criminal justice system.
of its report, new legislation was passed from
This organisation was started in the 1970s by a
2005, some of which is discussed below.
120
New South Wales Rape Crisis Centre
group of women who voluntarily assisted victims of
In conjunction with the Taskforce investigation,
sexual assault in NSW. In 1974, the Whitlam federal
the NSW government also asked the Australian
government provided funding so that services
Institute of Criminology (AIC) to investigate the
could be upgraded and made permanent, and the
question of whether giving evidence via closed-
workers paid. The centre runs 24 hours a day and
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Rape Crisis Centre go to www. nswrapecrisis.com.au/
provides support and counselling for anyone in
by the media and have horrified the public and
NSW who has experienced sexual violence.
many in the legal profession. Frequently, however,
The leg al s y s tem
legal links
Figure 5.18 The NSW Rape Crisis Centre is a HOURTELEPHONEANDONLINECRISIS SUPPORT and referral service for anyone in NSW who has experienced sexual violence.
For more information on the NSW
the positive outcomes have been accompanied
The NSW Bar Association
by less desirable ones, such as the rights of the
The NSW Bar Association, the professional
and a readiness to exploit the prejudices of some
organisation for barristers in the state, has rewritten
segments of the public. In the 2004 Sydney gang
its own rules for the cross-examination of alleged
rape trials, an ugly racist theme surfaced in some
victims of sexual assault matters. Questions that
of the public rhetoric focusing on the ethnicity
belittle, confuse or mislead victims are to be
of the rapists. The media can be an unreliable
banned. Attacks on the victim, it is hoped, will
instrument of justice.
accused being accorded a fairly low importance,
now not be permitted in the courtroom.
R ESEAR CH 5 . 4
The media Criminal cases involving sexual assault have received significant media attention over the past decade. In some cases this frenzied attention has led to undesirable results, such as in 2004 when the conviction of one of five men accused of gang rape, Tayyab Sheikh, was overturned in the NSW Court of Criminal Appeal and a new trial ordered. When sensationalistic coverage gives a jury access to inadmissible material, the jury’s ability to ignore
1 Obtain some or all of the following articles from the archives of each newspaper or using a search engine. s Natasha Wallace, ‘A daughter’s agony, her family’s suffering’, Sydney Morning Herald, 29 July 2004 s Paul Sheehan, ’Why sexual violence is almost legal: Our inflexible, forbidding court system alienates many who deserve justice’, Sydney Morning Herald, 9 August 2004
this information may be put into doubt and thus
s Paul Sheehan, ‘Rough, slow justice for
the accused may not receive a fair trial. The judges
rape victims’, Sydney Morning Herald,
said this was regrettable but ‘a conviction following
10 April 2006
an unfair trial is a conviction obtained at too high a price’. In other cases, the media’s influence on public
s Kate Sikora, ‘Standing up for victims’, The Daily Telegraph, 9 October 2006 s Janet Fife-Yeomans, ‘Damning report
opinion, law organisations and governments has
shows how we fail our sex case children’,
resulted in changes that improve the treatment of
The Daily Telegraph, 3 October 2008
victims of serious sexual assault crimes in court.
2 Outline the criticisms made of the criminal
Victims being forced to recount their experience
justice system in these articles. Could the
over and over, and defence counsel badgering
high profile of these cases have led to some
victims in cross-examination to call their credibility
of the law reform measures outlined below?
into question, have been graphically portrayed
Discuss.
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Mec h a n i s m s o f l aw r e f o r m r e l a t i n g t o s exu a l a ss a u l t Parliament
unrepresented accused from cross-examining
There have been many Acts passed by the NSW Parliament over the past few years to usher in reform in sexual assault matters. Some of the key legislation has been: s Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW) This Act amended the Criminal Procedure Act 1986 (NSW) to provide that a pre-trial order made by a judge in proceedings relating to a sexual offence is binding on whatever judge presides at the trial. Rulings on the admissibility of evidence by a judge other than the trial judge need to be binding on the trial judge, so that delays in the commencement of criminal
the complainant. s Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW) A person’s lack of consent and knowledge that the person is not consenting are elements of sexual assault offences, such as rape. If someone is under the influence of alcohol or drugs, there may be no capacity to give consent. In court, an accused will be examined by the prosecution on what steps he took to ensure that there was consent. The Crimes Act 1900 (NSW) was amended to place the onus on the defendant to prove there was consent; in the past the prosecution had this responsibility.
proceedings are minimised. The legislation was designed to minimise the stress and trauma on complainant a person alleging that a sexual assault has been committed against him or her in camera ,ATIN PRIVATELYONLY specified persons SUCHASTHEJUDGECAN be present during the testimony or proceeding consent free and voluntary agreement to sexual intercourse
122
complainants giving evidence, who have to
The courts
prepare themselves to give evidence every time
While recommendations of the Criminal Justice
a trial is scheduled and rescheduled.
Sexual Offences Taskforce have changed the
s Criminal Procedure Amendment (Evidence) Act
manner in which judges and the courts deal with
2005 (NSW)
matters of serious sexual assaults, these changes
This Act amended the Criminal Procedure Act
have largely been brought about as a result of
1986 (NSW) to allow a transcript or recording
legislation. Changes in social attitudes regarding
of a complainant’s evidence in any retrial. If
sex crimes will doubtless lead to future court
the evidence is admitted in a retrial, then the
decisions rethinking the law or looking at criminal
complainant cannot be forced to give further
law issues in the area of sexual assault in a way
evidence unless she or he decides to do so.
that leads to law reform.
s Criminal
Procedure
Further
Amendment
Judges in cases where a guilty verdict was
(Evidence) Act 2005 (NSW)
returned did hand down some severe penalties,
Certain provisions of this Act were designed to
both to send a message of general deterrence
ensure that improper questions were not put
to the community and to reflect the severity of
to complainants during cross examination. It
the offences. For example, Bilal Skaf, who was
also provided for evidence to given ‘in camera’
convicted as the ringleader in a series of gang rapes
(privately) and for support people to be close
in Sydney in 2000, was sentenced to 55 years gaol
to a complainant when giving evidence. The
with a non-parole period of 40 years.
Act also introduced a new section into the
It has been suggested that specialist courts for
Criminal Procedure Act 1986 to prevent an
sexual offences would lessen the trauma suffered
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far as to recommend a specialist court, its
would improve conviction rates. Some of
recommendations included a specialised
Choose one or more of the
the features of such courts would include
case management process using specially
following articles to read
appropriate technology, such as closed-
trained judges and prosecutors, screening
carefully:
circuit television, and facilities such as
processes, technology and other features
s Richard Ackland, ‘New rape
separate entrances for defendants and
of such a court.
victims. While the Taskforce did not go so
trial is on a slim premise’, Sydney Morning Herald, 5 March 2004, www.smh. com.au/articles/2004/03/04 /1078378906956.html s Jocelynne Scutt, ‘The rights and wrongs of the courtroom’, Sydney Morning Herald, 23 May 2005, www.
The leg al s y s tem
R ESEA RC H 5 . 5
by victims when giving evidence, and
smh.com.au/news/Opinion/ The-rights-and-wrongs-ofthe-courtroom/2005/05/22/ 1116700591974.html s Clare Buttner, ‘Justice failing rape victims’, Lawyers Weekly, 29 May 2007, http://www.lawyersweekly. com.au/blogs/top_stories/ archive/2007/05/29/justicefailing-rape-victims.aspx 1 What is the author arguing? 2 What support does he or she offer for his or her ideas? 3 Discuss.
Figure 5.19 An effective poster produced as part of the Northern Beaches Men Against Sexual Assault Campaign
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Ef fec t iveness of law reform r e l a t i n g t o s exu a l a ss a u l t As discussed, the low reporting rates for sexual
number of cases in 1995. The difficulties of
crimes, and consequently the low number of
prosecuting such cases still exist, including victims’
offenders successfully prosecuted, were a serious
reluctance to be ‘grilled in the witness box’.
concern to the NSW government and to the com-
The changes to the NSW Barristers’ Rules with
munity at large. The legislation passed from 2005
respect to the questioning of sexual assault victims
on has been an attempt to address this problem.
can only be a good thing. It is also a sign that the
The chief task is to ensure that victims are not
publicity and pressure exerted by the various
further traumatised by the court process, while
agencies of law reform have prompted a rethink of
protecting the right of an accused to a fair trial.
the way defence lawyers will conduct their cases
Changes to the law of consent in late 2007 may
in the future.
prove to deliver a significant shift in outcomes for
In a speech to the NSW Rape Crisis Centre AGM
the complainant. In the vast majority of matters,
in 2007, the state Minister for Women, Verity Firth
where the accused is known to the complainant,
MP, commented that at least two-thirds of the 70
a reversal of the onus of proof regarding consent
recommendations of the Criminal Justice Sexual
may make it more difficult for the accused to deny
Offences Taskforce had been implemented. In
criminal responsibility. It may in turn encourage
addition to the legislative provisions, she stated
more victims to report offences.
that some the following initiatives are also taking
As the new laws are applied in the courts, there will be more information for assessing whether the requirement of ‘reasonable grounds’ for believing that there was consent will unfairly prejudice juries against a defendant. At this stage it appears that the
REVIEW 5.9 1 How has the NSW Parliament addressed the need for reform in the area of sexual assault crimes? Give examples. 2 What other agencies have had a role in bringing about changes to the way trials are conducted? Classify each of these agencies with respect
reforms are having little practical impact. Figures from the NSW Bureau of Crime Statistics show
place: s Continuing efforts to address delays in sexual assault
matters.
The
District
Court
had
introduced mandatory timetables. s Closing
court
when
victims
are
giving
evidence. s Complainants can use remote witness facilities in 78 locations across the state. s Judges are required to disallow improper cross-
that police only arrested offenders
examination questions.
in 21 per cent of the sexual assault
Finally, continuing efforts to educate the public
cases that were reported in 2007.
are equally important. Sexual assault crimes
Further figures show the success
are crimes of violence, and certain beliefs about
rate of the police in solving sexual
gender in our society need to be articulated and
assaults has dropped dramatically.
challenged if these crimes are to be properly
Police were solving double the
addressed by the criminal justice system.
to their function and purpose within the legal system. 3 Outline some of the changes that have taken place. 4 How could success in this area be measured? Give examples.
124
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To p i c s um m ar y t a sks
s ‘Native title’ refers to Aboriginal and Torres Strait Islander peoples’ right to an area of land with which they have had an ongoing association. s The concept of terra nullius was used to JUSTIFYTHEIMPLEMENTATIONOF"RITISHLAWAND the dispossession of Indigenous peoples.
s 4HEREFERENDUMAMENDEDTHE Constitution to allow the Commonwealth to legislate for Indigenous Australians, and to allow them to be counted in the census. s The Mabo case was a significant High Court decision that abolished terra nullius and led the federal government to pass the Native Title Act 1993#TH s &URTHERSTATEANDFEDERALLEGISLATIONAND court decisions have been instrumental in law reform in the area of native title.
1 British policies towards Indigenous Australians were based on which of the following? a colonial conquest, then attempts at assimilation b mediation c native title d implied rights contained in the Constitution 2 7HATWASTHEEFFECTOFTHEAMENDMENTS to the Australian Constitution? a They gave Indigenous people the right to vote. b They allowed the Commonwealth to make laws for Indigenous Australians, and allowed them to be counted in the census. c They gave them native title. d They gave Australian citizenship to all Aboriginal people in NSW and Victoria. 3 Which of the following statements is true of the Wik decision? a It gave Indigenous people native title over all pastoral land.
b The High Court held that pastoral leases could coexist with native title, but where there was a conflict, the pastoral lease took priority. c It overturned Mabo. d The High Court found that the Native Title Act 1993 was unconstitutional. 4 The aim of the National Native Title Tribunal is: a to assist with native title negotiations b to determine whether a particular place is terra nullius c TOADVISETHE&EDERAL#OURTOF!USTRALIAON native title d to hear criminal cases involving Indigenous Australians 5 Which of the following statements is true of native title? a It can be claimed by an individual. b It is a collective right shared by a group. c It is the modern term for terra nullius. d )TISCONTAINEDINSOFTHE#ONSTITUTION
1 In your own words, describe the Myall Creek Massacre. Why do you think this massacre occurred? 2 Create a timeline outlining the key stages of Indigenous Australians’ right to vote in federal elections. 3 In your own words, discuss the aims of the Native Title Tribunal. Why was it implemented?
4 Who was Eddie Mabo? How did he change Indigenous rights? 5 Describe the relationship between court decisions and subsequent legislation, and explain how law reform relating to native title has taken place so far.
The leg al s y s tem
M ul ti p l e- c hoi ce q u e s ti o n s
To p i c s u m m a ry
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To p i c su m ma r y t as ks
M ul ti p l e- c hoi ce q ues ti o n s
To p i c s u m m a ry
To p i c 2 : L aw r e f o r m a n d s p o r t
126
s Sport law is a complex combination of tort, criminal, and contract law, and is based on both statute and common law. s 3PORTHASCHANGEDDRAMATICALLYINTHELAST YEARSITISBROADCASTNATIONWIDE ANDMAJOR companies spend vast sums of money to sponsor teams and competitions. s Athletes are held responsible for their intentional actions both on and off the sporting field.
s Rules of the games, set down by governing bodies, can be enforced through the court system, and players may face criminal charges or civil action for harm inflicted. s Coaches, referees and administrators may be SUBJECTTOACLAIMINNEGLIGENCEFORBREACHING a duty of care. s Agencies of law reform in sport include the Australian Sports Commission with respect to various matters, as well as the Australian Human Rights Commission with respect to discrimination.
1 Sport law is: a the rules of any particular sporting body b the law made by the Australian Sports Commission c a combination of various statutes, common LAWJUDGMENTSANDTORTLAW d none of the above 2 Express consent is a term that means: a Players may do whatever it takes to win a game. b What happens on the field stays on the field. c Players must give consent before they play a game. d Players accept the possibilities that can occur within the course of the game. 3 Victims of assault on a sporting field usually take legal action through civil courts because: a Criminal law does not apply on the sporting field.
b Victim compensation is inadequate for professional athletes. c There is usually not enough evidence. d Witness statements from players cannot be accepted in courts. 4 Vicarious liability refers to: a referees’ and officials’ responsibility for the enforcement of rules b employers being held accountable for their employees’ actions c financial liability of sporting bodies d none of the above 5 The case of Trudy Gardner demonstrates: a a conflict between sporting rules and antidiscrimination laws b HOWSPORTINGBODIESARESUBJECTTOLEGAL action c the ability of individuals to challenge decisions in courts d all of the above.
1 Outline the changes in attitudes to sport that have occurred over the past few decades. List some of the consequences of these changes. 2 Explain the importance of the law in governing on-field behaviour in contact sports. 3 Explain how contract law relates to professional athletes and clubs. What can happen if a contract is breached?
4 Why do you think victims of violence on the sporting field don’t report an offence to police? 5 Discuss two ways in which women’s participation in sport has led to law reform.
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1 Which of the following was not a reason to reform the law in the area of sexual assault? a low rate of reported sexual offences b low rate of convictions c poor level of service to victims in terms of information and resources d the media were insufficiently interested in sexual assault cases 2 4HE#RIMINAL*USTICE3EXUAL/FFENCES 4ASKFORCESETUPINHASBROUGHTABOUT which of the following changes? a legislation to improve procedures regarding the giving of evidence b LEGISLATIONREQUIRINGJUDGMENTSTOREmECT public opinion about sexual offenders c a greater number of sexual offences reported d a statutory requirement that the media report cases with greater understanding of the law 3 The NSW government asked the Australian )NSTITUTEOF#RIMINOLOGY!)# TOINVESTIGATE whether giving evidence via closed-circuit television altered the way in which the evidence was received, that is, whether it AFFECTEDJURIESEMPATHYFORTHEVICTIMORTHE accused. Which of the following best reflects those findings? a *URIESWEREMORELIKELYTOFAVOURTHE accused. b *URIESWEREMORELIKELYTOFAVOURTHEVICTIM c 4HEREWASNODIFFERENCEINJURYRESPONSES d Closed-circuit TV evidence was more likely to permit the presentation of graphic evidence.
s Agencies of law reform relating to sexual assault include parliamentary inquiries such ASTHE#RIMINAL*USTICE3EXUAL/FFENCES Taskforce, non-government organisations such as the NSW Rape Crisis Centre, and professional organisations. s The media have been influential in putting pressure on governments to reform the laws relating to sexual assault. s 3INCE VARIOUSLEGISLATIONHASBEEN passed in NSW to improve criminal procedure in relation to sexual assault cases.
The leg al s y s tem
To p i c s u m m a ry
s There has been significant law reform relating to sexual assault over the past decade, PROMPTEDBYTHEFAILUREOFTHECRIMINALJUSTICE SYSTEMTODELIVERJUSTOUTCOMESFORVICTIMS s Sexual assault is a crime with one of the lowest conviction rates in NSW due to investigation failures, delays in cases, a lack of resources and a lack of information provided to victims.
M ul ti p l e- c hoi ce q ues ti o n s
To p i c 3 : L aw r e f o r m a n d s ex u a l a s s a u l t
4 The Crimes Amendment (Consent – Sexual Assault Offences) Act 2007.37 CHANGED the Crimes Act with respect to consent. Which of the following is correct? a Documentary evidence is needed to establish consent. b The onus of proof of consent has been reversed. c Partial consent may be established. d None of the above 5 The Criminal Procedure Further Amendment (Evidence) Act 2005 .37 MADEWHICHOFTHE following changes to the Criminal Procedure Act 1986.37 a Hearsay evidence can now be admitted to prove that the complainant consented to sexual intercourse. b It prohibited the cross-examination of victims by an accused person representing himself. c It allows a transcript or recording of a complainant’s evidence in any retrial. d It reaffirmed the right of an unrepresented accused to cross-examine the alleged victim.
#HA PTERn,A WREFORMI NACTI ON
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To p i c s u m m a ry ta s k s
To p i c 3 : L aw r e f o r m a n d s ex u a l a s s a u l t
128
1 Outline the main issues that prompted law reform in the area of sexual assault. 2 Discuss the changes to the law of consent from the perspective of the victim and the accused. 3 Identify and describe the role of some nonlegal measures in addressing the effectiveness of the law in dealing with sexual assault.
4 Describe at least three legislative reforms to the law relating to sexual assault. 5 Assess the effectiveness of law reform in addressing the issues around sexual assault.
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The ind iv id ual and th e law
PART II
The individual and the law The individual and the law
1 Your rights and responsibilities s The nature of individual rights s The relationship between rights and responsibilities
30% of course time 2 Enforcing rights s Role of the federal and state police and other law enforcement agencies s Disputes between individuals: – alternative dispute resolution – negotiation – mediation – arbitration – courts s Disputes with the state: – informal methods: – media – members of parliament – trade unions
– interest groups, including non-government organisations – formal methods: – internal review – external review: administrative, judicial, Ombudsman, statutory bodies including: Australian Human Rights Commission, Independent Commission against Corruption (ICAC), Royal Commissions
3 Contemporary issue: the individual and technology s Scope of technology s Effects of technology on the individual s Legal implications
s Difficulties with enforcing rights s Future directions: the role of law reform
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CHAPTER 6
ke y t e r ms
c hap ter ob j e cti ve s
Your rights and responsibilities
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In this chapter, students will: s investigate the effects of legal and non-legal institutions on individuals s explore the relationship between rights and responsibilities in various contexts s discuss the necessary balance between the rights of individuals and the state s evaluate the effectiveness of legal instruments for achieving justice for both individuals and society s identify and apply appropriate legal terms and concepts
bill of rights implied rights political autonomy responsibilities rights self-determination self-executing tortious
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IM PORTA N T L EGIS L AT ION
Racial Discrimination Act 1975 (Cth) Education Act 1990 (NSW) Summary Offences Act 1988 (NSW) World Youth Day Act 2006 (NSW) SIGNIFIC AN T C AS ES
Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 Donoghue v Stevenson [1932] AC 562 Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110 Evans v State of NSW [2008] FCAFC 130
The ind iv id ual and th e law
rel ev ant l aw
odd l a w In 1976, Reef Beach, NSW, was declared a legally nude beach by the state premier. When locals became distressed in the early 1990s by ‘immoral behaviour’, Peter McDonald ran for the seat of Manly in the NSW Parliament promising to get rid of the nudists. The local council (Manly Council) also attempted to use a 1919 law to oust them. The nudists won in the Local Court after charges were brought against them in 1993 for a nude protest swim, but McDonald then used a private member’s bill to change the 1919 legislation. The court decision was reversed and nude bathing became illegal.
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7 H A T A R E R I G H T S A N D R ES P O N S I B I L I T IES rights legal or moral entitlements or permissions
Rights are entitlements that people have by
her children, and all persons have a responsibility
legal or moral authority. If you have a right to
not to commit criminal and tortious acts. States,
something, others are legally or morally prohibited
groups, organisations, corporations and societies
responsibilities legal or moral obligations to others
from taking it away from you. A person has a
have responsibilities, just as individuals do.
tortious wrongful; constituting a tort or breach of duty to others
right to do something or possess something as a
Rights and responsibilities are interrelated.
result of being in a particular group or a particular
Where someone has a responsibility to another
legal class of persons. For example, only citizens
person, the other person has a corresponding right
over the age of 18 have the legal right to vote in
to be treated in a particular way. Where citizens
Australia. Human rights are fundamental rights
have particular rights, the state has a responsibility
that every person has on the basis of being a
to protect those rights and ensure that they are
human being, without regard to nationality, age,
not violated by individuals, groups or the state
sex, or other characteristics. ‘Human beings’ is
itself. Where the members of a group have a legal
a class of persons, just as ‘persons over 18’ or
responsibility to do something, the group has
‘Australian citizens’ is a class or group of persons.
a right to expect it. For example, members of a
Responsibilities are legal or moral obligations
trade union are responsible for paying their union
that a person may have to another person, to a
dues; everyone on the electoral roll in a state has
group, or to the state, society, or other people gen-
the responsibility to serve on a jury if randomly
erally. There are responsibilities to act in par ticular
chosen.
ways, as well as responsibilities to refrain from certain acts. For example, a parent has both legal and moral responsibility for taking care of his or
,EGALBASISOFRIGHTS For a right to have a legal basis, it must be protected by law and thus be enforceable. In Australia, legal rights may be protected by statute or by common law.
3TATUTE An example of a right protected by statute is the right not to be excluded or restricted on the basis of race, colour or ethnic origin. This right is contained in the Racial Discrimination Act 1975 (Cth) and is very broad, extending to people’s treatment in ‘political, economic, social, cultural, or any other field of public life’ (s 9). For example, an employer would not be able to dismiss an employee because he or she was from a certain racial group. Nor would a political party be able to Figure 6.1 Voting is compulsory for people over the age of 18. But apart from being compulsory, it is also a right.
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refuse to allow someone to join because of his or her ethnic origin.
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is parents’ duty to send their children to school.
Other rights are protected by common law, par-
Another is the duty of the state to ensure that
ticularly in contract law and tort law. For example,
every child has the best possible education, and to
if one party to a contract breaches a term of the
provide public schools. These duties are contained
contract (that is, fails to do what he or she agreed
in Acts such as the Education Act 1990 (NSW), and
to do), and the term that has been breached is a
are based on the principle, stated in s 4 of the Act,
very important one, the other party has the right to
that every child has the right to an education.
The ind iv id ual and th e law
#OMMONLAW
end the contract (Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14). Or to take a very general example that we have seen in the context of tort law, if someone purchases a product, he or she has a common law right to enjoy it without being exposed to anything harmful or unpleasant (Donoghue v Stevenson [1932] AC 562).
,EGALBASISOF RESPONSIBILITIES
#OMMONLAW Other legal responsibilities are based on the common law. For example, the duty of care is a well-known common law duty. As expressed in Donoghue v Stevenson, it is owed to all persons who are likely to be ‘closely and directly affected’ by your acts. Other contexts in which there is a duty of care include doctors’ duty to their patients, airlines’ duty to passengers, and employers’ duty to
As stated above, where someone has a right,
ensure that their employees have safe conditions in
someone else has a corresponding responsibility.
which to do their work (Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110). Breach of the duty
3TATUTE
of care, resulting in harm that could be foreseen,
Legal responsibilities are also called ‘obligations’
entitles the person harmed to bring an action for
or ‘duties’. An example of a statutory obligation
negligence.
negligence carelessness; a tort that involves breach of a duty of care resulting in harm that could be foreseen
4 H E N A T U RE O F I N D I V I D U A L R I G H T S 4HEDISTINCTIONBETWEEN MORALANDLEGALRIGHTS
not be the law – if it is currently the law it cannot be argued that it is not currently binding, whether someone likes it or not.
The main difference between legal rights and
While moral rights and responsibilities may
moral rights is that people can argue from different
have binding force for everyone, only those who
ethical viewpoints about whether a certain moral
believe that they are binding are likely to behave
right exists, whereas legal rights are contained in
accordingly and try to persuade others to do so.
statutes or in the body of decisions constituting
In other words, moral rights and responsibilities
common law, and it cannot be disputed that these
are not enforceable. While many laws have been
are binding in the jurisdictions to which the statute
passed because they agree with the moral views
or the common law applies. Although people
of most people in a community, and are complied
might argue that a particular law or common law
with for similar reasons, the law is sometimes slow
principle is not just – in other words, that it should
to change to reflect changes in social attitudes
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Figure 6.2 A controversial moral right is the right to die.
bill of rights a statement of basic human rights and privileges
and public morality. As discussed in Chapter 4,
sets out specifically what individuals are entitled
this is why law reform is an important feature of
to expect of their government. Australia is the only
Australian law.
western democracy that does not have one.
An example of a controversial moral right is the
Although the UK has no single constitutional
right to die. Some people diagnosed with terminal
document, the English Bill of Rights of 1689 sets
illnesses have argued that they have a right to die
out a few fundamental rights and is still in force
if they choose, rather than suffering pain and loss
today. However, it is limited in its scope and deals
of dignity. However, euthanasia is not a legal right
mainly with succession to the throne and the
in any Australian jurisdiction.
way in which English law was to be adopted in its
Another example is the right in NSW to engage
colonies (see p. 145 on the ‘doctrine of reception’).
in sexual activity. Consensual heterosexual and
As one of the 47 member countries of the Council
homosexual sex is legal for persons over the age
of Europe, the UK is a party to the European
of 16. However, many religious and social leaders
Convention for the Protection of Human Rights and
in our community would argue that this age is
Fundamental Freedoms (1953) and is bound by it.
inappropriate. Hence, while persons over 16 have
In the USA, the Bill of Rights, ratified in 1791, con-
a legal right to consensual sex, some would dispute
sists of the first ten amendments to the Constitution
the existence of a moral right to it.
and contains fundamental rights of individuals in private life, in the criminal justice process, and
!BILLOFRIGHTS
with respect to the government generally.
0ROTECTIONSPROVIDEDBYBILLSOF RIGHTS
civil, democratic and human rights, including
Countries including the United States of America,
government intrusions into individuals’ lives.
the United Kingdom and New Zealand have a document known as a bill of rights. Such a document
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New Zealand’s Bill of Rights Act 1990 contains freedom from discrimination, and freedoms from Table 6.1 shows some examples of rights contained in bills of rights.
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.EW:EALAND "ILLOF2IGHTS!CT
5NITED3TATESOF!MERICA "ILLOF2IGHTS
%UROPEAN5NION %UROPEAN#ONVENTIONFORTHE 0ROTECTIONOF(UMAN2IGHTSAND &UNDAMENTAL&REEDOMS
The right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment (s 9)
The right not to be subjected to excessive bail, excessive fines, or cruel and unusual punishments (Amendment VIII)
The right not to be subjected to torture or to inhuman or degrading treatment or punishment (Article 3)
The right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference (s 13); freedom of expression (s 14)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press (Amendment I)
The right to freedom of thought, conscience, and religion (Article 9); freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference (Article 10)
Everyone who is arrested shall be informed of the reason; shall have and be informed of: the right: to consult a lawyer, to be released if the arrest is not lawful, to be charged and brought to court promptly or released, and not to be a witness against himself (s 23).
No person shall be held to answer for a capital crime unless on a presentment or indictment of a grand jury, nor compelled in a criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law (Amendment V) The right to a speedy and public trial by jury, to be informed of the nature and reason for the accusation, to have a lawyer (Amendment VI)
Everyone charged with a criminal offence has the right to be informed of the nature and reason for the accusation, to have adequate time and facilities to prepare his defence, to have a lawyer, to have witnesses on his behalf under the same conditions as witnesses against him, to have a fair trial, and to be presumed innocent until proved guilty (Article 6)
The ind iv id ual and th e law
Table 6.1 Examples of rights enshrined in a bill of rights T A
2 %3%!2 #( Go to www.law.cornell.edu/constitution/ constitution.table.html#amendments to view the United States Bill of Rights (the first 10 amendments to the US Constitution). 1 Choose three rights that are contained in the US Bill of Rights. Summarise these rights in your own words. 2 For each of these rights, explain why it was considered important enough to be included in the US Bill of Rights. 3 Are these considerations still relevant today? Why or why not? You may need to do further research. Try
Figure 6.3 The US Bill of Rights is part of the Constitution.
www.usconstitution.net/constquick.html
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!RGUMENTSFORANDAGAINSTAN !USTRALIANBILLOFRIGHTS
freedom (s 116) and the right to trial by jury (s 80).
In Australia, a bill of rights has never existed,
constitutional protection for a broader range of
as the authors of our Constitution believed that
human rights has featured in Australian political
citizens’ rights would be protected by decisions of
dialogue since the 1890s and continues today.
the courts or by various statutes made as the need
Some of the arguments for and against a bill of
arose. The Australian Constitution does set out a
rights are summarised in Table 6.2.
However, the debate over the need for explicit
number of rights, including the right to religious
Table 6.2 Arguments for and against a bill of rights in Australia
2% 6)% 7 1 Make a list of five rights and corresponding responsibilities 2 Describe the difference between legal and moral rights, using examples. 3 ‘Citizens have the right to end their own lives if they are terminally ill.’ Discuss the legal and moral issues arising from this idea. 4 What are some further arguments for and against an Australian bill of rights? Do we need a bill of rights? Justify your answer.
&OR
!GAINST
s Australian law gives insufficient protection to fundamental freedoms, and a bill of rights would enshrine those rights. s A bill of rights would make our current laws more cohesive and accessible, rather than being ‘locked up’ in past judgments and statutes. s We are becoming increasingly internationalised and need to be aware of international laws. A bill of rights would bring Australia in line with other countries. s A bill of rights would allow Australia to meet its international obligations more effectively. s A bill of rights would protect the rights of minorities. s The High Court’s interpretation of ‘implied rights’ in the Constitution is too limited: we need a document explicitly setting out our rights.
s Rights are already protected by statutes and the common law. s A bill of rights makes little practical difference in the protection of rights. s Enabling judges to strike down laws made by parliament that are inconsistent with a bill of rights would be undemocratic. s Rights written in a bill of rights can become outdated very quickly in a rapidly changing world. s A bill of rights would actually restrict rights, because once defined, a right is limited by the words in which it is expressed. s The judiciary would become too political if there were a bill of rights.
) N D I V I D U A L S R I G H T S A N D RES P O N S I B I L I T IES I N RE L A T I O N T O T HE S T A T E
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#ONFLICTSBETWEENRIGHTS ANDRESPONSIBILITIES
the common law, they also have responsibilities.
Australian citizens have certain expectations of
come into conflict.
At times the rights of individuals and their responsibilities to the local, state or national community
their local, state and federal government, and
Over the past few years in New South Wales,
understand that while citizens enjoy the rights
smoking cigarettes has been outlawed in more and
granted by the constitution, other statutes, and
more places. Manly Council, which governs Manly
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The ind iv id ual and th e law
Beach through delegated authority, introduced a no-cigarette policy for its beach in 2004. Council rangers are now able to fine people smoking on the beach up to $50. Individuals’ desire to smoke on the beach clearly conflicts not only with the desires of non-smokers to have a smoke-free environment in proximity to them, but also with the council’s interest in keeping the beach free of cigarette butts,
Figure 6.4 A no-smoking sign on Manly Beach, Sydney
which create not only an ugly sight for tourists but also hazards for marine life when they are washed into the ocean. It could be argued that individuals’ responsibility to assist overrides their right to enjoy a cigarette on the beach. A newspaper article outlining this case is presented on page 11. Other conflicts between individuals and the state are seen as more serious. At times, governments have asked citizens to be willing to die in wars that the citizens oppose. Throughout the 1960s and 1970s, the Australian government felt obliged to assist in the United States’ effort to defeat communism. Approximately 47 000 young men were conscripted to fight in the Vietnam
Figure 6.5 Young men were selected randomly from birth records to fight in the Vietnam War.
War between 1966 and 1972, through the enactment of a law that permitted them to select young men randomly from birth records. If an individual
eat, the clothes they wear, the jobs they do and
refused to respond to a letter from the government,
how many children they have. Laws based on
he was pursued and often gaoled for breaking the
religious beliefs would violate constitutional pro-
law. Those who believed that violence or war was
hibitions in Australia, the USA and many other
morally wrong, or that the Vietnam War was not a
countries, and moral justifications of laws dealing
just war, were known as ‘conscientious objectors’.
with such individual matters would not last long
Individuals’ rights in relation to the state have
in a multicultural society with diverse beliefs.
taken a new turn since 11 September 2001, when not
Nonetheless, there are examples where govern-
only the United States but other countries including
ments have tried to exert statutory authority
Australia began to enact legislation to protect its
within these areas.
citizens from terrorism. We will look at some of the
In Louisiana and Virginia, USA, in 2004 and
problems for individual rights in Chapter 13, which
2005, the state governments attempted to outlaw
deals with the case of Mohamed Haneef. Haneef,
the wearing of trousers that reveal underpants – a
an Indian-born Australian resident, was detained
fashion among teenagers at the time, inspired by
without charge for 12 days in connection with a
hip-hop artists who have displayed it at concerts
bombing that he had nothing to do with.
and on album covers. The proposed legislation was based on the view that such fashions were indecent
3TATEINTERFERENCEWITHPERSONAL LIBERTIES
and offensive to the rest of the community and on
In all Western democratic countries, individuals
lead-up to the USA presidential elections of 2008,
can govern themselves in terms of the food they
Barack Obama weighed into the debate.
the criminal offence of indecent exposure. In the
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m e d i a cl i p
Kick in Pants from O ‘Brothers, stop sagging’ By Geoff Earle, Post Correspondent Jacksonville, Florida – Barack Obama has a message for America’s youth: Pull up your pants! New York Post, 4 November 2008
In an interview with MTV’s Sway Calloway, Obama fielded a question from Eric, a Huntington Beach, California man who referenced a town ordinance that tried to outlaw a street fashion trend in which young men wear their baggy pants down well below their underwear. Obama said such laws were ‘a waste of time’, but didn’t hold back on his own view on the fad. ‘Having said that, brothers should pull up their pants,’ he declared. ‘You are walking by your mother, your grandmother, your underwear is showing. What’s wrong with that? Come on. Some people might not want to see your underwear – I’m one of them,’ he added. Here is my attitude. I think people passing a law against people wearing sagging pants is a waste of time. We should be focused on creating jobs, improving our schools, health care, dealing with the war in Iraq. Any public official who is worrying about sagging pants probably needs to spend some time focusing on real problems out there,’ he said. Although Obama doesn’t usually cast himself as the parenting police, he has gotten some of his biggest applause at rallies by telling parents to make their children turn off the TV. Stressing responsibility is a page from the playbook of Bill Clinton, who came out for school uniforms. (Clinton also had a famous MTV underwear moment in the 1992 campaign, when he was asked whether he wore boxers or briefs.) A Florida judge threw out a saggy-pants law in Riviera Beach, Florida, in September after a teen was arrested for showing four to five inches of his boxers.
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After Obama’s underwear comments, Calloway asked about people who get fired for tattoos or dreadlocks. Calloway wears long dreadlocks, which Obama said ‘looked tight’. ‘It’s one thing if an employer discriminates on the basis of gender or sexual orientation or obviously, race or ethnicity,’ Obama said, adding it was OK for employers to set standards. He noted that his daughter Malia wears twists in her hair. ‘To me, it looks great. Obviously, I would be upset if she were discriminated against on that basis,’ Obama said.
Figure 6.6 Should governments have the right to enforce codes of dress?
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The ind iv id ual and th e law
2%6)%7 1 Discuss the rights of a local council to ban: s smoking on a beach s the use of mobile phones s topless sunbathing. 2 Read the article on page 138. Outline the reasons why any government is likely to be unsuccessful in outlawing the display of underpants. Are there any countries that enforce the wearing of certain clothing? Do they have a right? You should try to write at least one point or argument for both sides of these scenarios. 3 Discuss whether a police officer in New South Wales could arrest you for indecency or offensive conduct under the Summary Offences Act 1988 (NSW). (This Act outlaws offensive, indecent or antisocial behaviour.)
Figure 6.7 Tasmanian logging and woodchipping company Gunns brought civil action against individuals and environment groups for a number of alleged acts of protest against its activities in logging natural growth forests.
)TSAFREEWORLD &REEDOMOFEXPRESSION
stated. In a series of cases, the court found that laws limiting political advertising, prohibiting criticism of government authorities, and restricting
As discussed above, the Australian Constitution
the provision of information about migration
does not contain a bill of rights. It does expressly
breached an implied constitutional right to political
protect a few rights of individuals. These are:
communication. This right cannot be taken away
s s 80: the right to a trial by jury
by a statute.
s s 116: freedom of religion s s 117: the right not to be discriminated against on the basis of one’s state of residence
implied rights civil and political rights that can be inferred from the Constitution, rather than being expressly stated
However, this implied right only protects individuals from limits on a particular type of communication (political), and the only limits from
s s 51(xxxi): the right to compensation if one’s
which they are protected are limits imposed by the
property is compulsorily acquired for any
government. A person cannot rely on the implied
purpose in respect of which the Commonwealth
right if another individual, an organisation or
government has the power to make laws.
corporation attempts to prevent his or her exercise
It was only in the early 1990s that the High
of free speech. For example, in 2004 the Tasmanian
Court began to interpret the Constitution in such
logging
and
woodchipping
company
Gunns
a way as to find rights for individuals that were
brought civil action in the Victorian Supreme Court
implied rights rather than expressly (explicitly)
against 20 individuals and environmental groups,
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for a number of alleged acts of protest against its
to $5500 for the sale or distribution of a range of
activities. The lawsuits alleged conspiracy to injure
items, including stickers, t-shirts and condoms. A
Gunns and unlawful interference with its business.
group called the NoToPope Coalition, protesting
Many commentators argued that the lawsuits were
the pronouncements of Pope Benedict XVI on
intended to intimidate the protestors and tie them
sex and condoms by handing out such items,
up in an expensive, time-consuming process –
challenged the regulation in the Full Federal Court
effectively silencing them.
as an intrusion on their freedom of expression.
The issue of freedom of expression arose in
The court struck down the part of one clause of
2008 when the Catholic Church and the NSW
the regulation relating to ‘annoying conduct’, but
government hosted World Youth Day in Sydney.
retaining the prohibitions on ‘inconveniencing’,
While celebrations and events ran for a week in
obstructing, or putting people’s safety at risk.
July, special powers were granted to police through
They held that it was not parliament’s intention
the World Youth Day Act 2006 (NSW) and World
that regulations would be made preventing the
Youth Day Regulation 2008. The Act prohibited
exercise of free speech.
conduct that ‘annoyed or inconvenienced’ the
Some critics of this decision (Evans v State of NSW
participants, and police could issue fines of up
[2008] FCAFC 130) have questioned the jurisdiction
Figure 6.8 World Youth Day, Sydney, 2008
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The ind iv id ual and th e law
of the Federal Court, arguing that only the High Court has the power to interpret the Constitution. The judgment could also be questioned on the basis of its application of the implied right, given the very narrow scope that the right was found to have in the High Court cases of the 1990s. Also in 2008, a British atheists’ group paid to place large advertisements on London buses, with messages such as ‘Sleep in on Sundays’ and ‘There’s probably no God. Now stop worrying and enjoy your life’. When the Atheist Foundation of Australia attempted to place similar advertisements, they were unsuccessful. Australia’s largest outdoor advertising company, APN Outdoor, rejected the proposal for ads on Australian public transport. The president of the Atheist Foundation, David Nicholls, commented that the experience highlighted Australia’s need for legislation prohibiting such a refusal, and that the laws of western Europe, the US and Britain
Figure 6.9 Defending free speech can be very expensive if you are taken to court for defamation.
are far better than those of Australia with respect to freedom of speech. On the other hand, it could obligation to do business or not do business with
&REEDOMOFEXPRESSIONAND DEFAMATION
anyone they choose, and that for the government
Another factor complicating the exercise of
to impede that choice is inappropriate.
freedom of expression is the risk of defamation.
be argued that private companies are under no
To what extent can you criticise your teacher, friend or boss, and possibly hurt his or her reputation?
2%6)%7
What legal rights and responsibilities do you have
1 Explain the difference between an
as the speaker or writer? And how well does the
‘express right’ and an ‘implied right’. 2 What rights are expressly guaranteed by the Constitution? 3 Do Australians have a right to free speech? Justify your answer. 4 Consider the case of the ads on buses.
law work to protect reputations on the one hand and free speech on the other? You are legally protected from being sued if: s what you say is true, or s it is your honest opinion, not a statement of fact, on a matter of public interest, and the
Should the government be able to
facts on which the opinion is based are clearly
pass legislation requiring companies
stated, or
to agree to purchase and display
defamation the act of making statements or suggestions that harm someone’s reputation in the community
s you have a legal, social or moral duty to com-
the ads celebrating atheism? What
municate something to a person and the person
about advertisements for religious
has a corresponding duty to hear or read it.
organisations? Discuss with respect to
Even if you were taken to court and successfully
each of the following issues:
used one of the three defences listed above, it may
s freedom of expression
cost you a significant sum in legal fees. Consider the
s s 116 of the Australian Constitution
case of Jodie Power and Mercedes Corby below.
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m e d i a cl i p
Channel Seven guilty in Corby defamation case ABC Online, 29 May 2008
A New South Wales Supreme Court jury has found that Channel Seven defamed Mercedes Corby in a series of news and current affairs stories broadcast earlier this year. Ms Corby sued Channel Seven over the network’s interviews with her former best friend, Jodie Power, in February. The sister of convicted drug smuggler Schappelle Corby argued she was defamed by false implications that she was a drug dealer and smuggler. Channel Seven mounted a defence of truth, but was struck down on all but one point. The jury found that Seven did establish that it was true Mercedes Corby was guilty of the crime of possession of marijuana, but not that she was a smuggler or dealer. ‘I just want to say I’m really happy, I’ve still got more to do but I’m really happy with the outcome,’ Ms Corby said outside the court. ‘Thanks to my great legal team.’ Outside the court, Jodie Power expressed her disappointment with the decision. ‘I can walk out of here and hold my head high and know I have told the absolute truth and I didn’t have to invent any stories about myself,’ she said. The court is yet to decide on damages.
Figure 6.10 Mercedes Corby
2 %6) %7 Read the media clip and answer the following questions: 1 Explain how Channel 7 could tell the truth but still lose the case. 2 Outline how Mercedes Corby felt she was defamed. 3 Evaluate the current laws on defamation. What responsibilities do you have when you talk about someone else?
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As discussed in Chapter 2, international law
express the international community’s aspirations
can be made through the formation of treaties
with respect to an area of human rights. They are
between two or more nations. Treaties become
generally developed through the United Nations or
binding on the citizens of an individual nation
other international organisations, such as subsid-
either automatically upon ratification, if the treaty
iary bodies of the UN, and while they are not legally
is self-executing, or once the nation has passed
binding, they are morally binding and influential in
domestic legislation to implement the treaty as
setting standards for the protection of rights.
part of its own laws. In Australia, treaties must be
The Universal Declaration of Human Rights is
implemented through domestic legislation in order
an important declaration of the rights to which
to become binding.
all humans are entitled. The following extract
Declarations are different from treaties in that
l eg al i nfo
they simply state the parties’ intentions; they
self-executing (of a treaty) automatically becoming binding on a state party to the treaty as soon as the treaty has been ratified
summarises what the UN is trying to achieve internationally.
%XTRACTOF5NIVERSAL$ECLARATIONOF(UMAN2IGHTS The full text of the Declaration can be viewed
Article 11
at www.un.org/en/documents/udhr
(1). Everyone charged with a penal offence
Article 3. Everyone has the right to life, liberty and security of person.
has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees
Article 4. No one shall be held in slavery or
necessary for his defence.
servitude; slavery and the slave trade shall be
(2) No one shall be held guilty of any penal
prohibited in all their forms.
offence on account of any act or omission
Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that
Article 9. No one shall be subjected to
was applicable at the time the penal offence
arbitrary arrest, detention or exile.
was committed.
Article 10. Everyone is entitled in full
Article 15.
equality to a fair and public hearing by an
(1) Everyone has the right to a nationality.
independent and impartial tribunal, in the
(2) No one shall be arbitrarily deprived of his
determination of his rights and obligations
nationality nor denied the right to change his
and of any criminal charge against him.
nationality.
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The ind iv id ual and th e law
) N T E R N A T I O N A L P RO T E C T IO N OFRIGHT S
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,IMITATIONSOF INTERNATIONALLAWIN PROTECTINGRIGHTS Parties to international law are nation-states, not individuals, and international law requires the full participation and cooperation of nationstates in order to function effectively. Some states may occasionally or frequently choose to ignore declarations, treaties and UN resolutions, just self-determination the right to determine one’s own acts without external influence; the freedom of the people of a given territory to determine their own political status or independence from their current state
as some citizens choose to ignore the laws of their state. The consequences for nation-states, however, are seldom as immediate or certain as they are for individuals who ignore the law.
mine their own political status (how they want to be recognised), and to pursue their own economic, social and cultural development. Selfdetermination is enshrined in the United Nations Charter, as well as in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights. Article 15 of the Universal Declaration of Human Rights (see above) expresses this right in terms of all individuals’ right to a nationality. The UN Charter, Chapter 1, Article 1, part 2 includes self-determination as one of the purposes or goals of the UN: To develop friendly relations among nations based
Rights are something thought to be possessed
on respect for the principle of equal rights and
not only by individuals, but also by peoples or
self-determination of peoples, and to take other
nations. Self-determination is a key right of
appropriate measures to strengthen universal
peoples. It means the right of a group to deter-
peace.
Figure 6.11 People at a rally showing their concerns about the Indonesian occupation of East Timor.
144
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British laws and were not considered to constitute
international politics, for example the Basque
a system of law at all. The ‘doctrine of reception’
independence movement in Spain and that of the
mandated that uninhabited land colonised by
Tamil Tigers in Sri Lanka. In some cases, the United
Britain would be subject to English law – despite
Nations has intervened. In other cases, sometimes
the vastly different languages, cultures, beliefs
because of individual member states’ reluctance
and traditions of the people who actually inhabited
to become involved in high-risk conflicts where
the land.
their own interests are at stake, there has been no UN action.
political autonomy self-determination, independence
One way in which self-determination is demonstrated in Australian Indigenous communities is
One place where the UN has intervened, with
through the use of tribal law rather
some limited success, has been in East Timor
than the English common law.
(now Timor-Leste). Indonesia, the former ruling
Circle sentencing is an example of
power of East Timor, opposed the indepen-
tribal law in practice.
2 %6) %7 1 What are the purposes of the Universal Declaration of
dence movement for many years, as East
Human Rights?
Timor contained considerable resource wealth
#IRCLESENTENCING
and lay geographically within the Indonesian
Circle sentencing courts have been
archipelago. In 1999, the UN intervened and was
established in several locations
assisted by Australian troops to keep the peace
in NSW, the ACT and WA. Their
between pro- and anti-independence supporters
introduction is based on Canadian
while a referendum was held. Although a large
experience
majority of East Timorese voted for independence
communities and has the goal
2 %3%!2 # (
from Indonesia, violence and internal conflict
of preventing crime, supporting
Go to www.aic.gov.au/topics/
with
2 How are those rights enforced? Suggest some possible ways they could be more effectively enforced.
Indigenous
continued, with pro-Indonesian militias launching
victims and giving Indigenous
indigenous/interventions/
attacks from within and outside East Timor,
people greater involvement in the
alternatives/circle.html and read
and an assassination attempt on President José
criminal justice system. Sentences
the article by Brendan Thomas,
Ramos-Horta in 2008.
are more likely to be meaningful
‘Circle sentencing : involving
for the offender if imposed by
Aboriginal communities in the
4HERIGHTSOF)NDIGENOUS PEOPLES
authorities within his or her own
sentencing process’ (2000).
culture.
1 What are the aims of circle
The question of whether peoples who want
following way. When an accused
2 What are the benefits?
independence from a colonial power have a right
person in a criminal trial has
3 What are the drawbacks?
to such independence may be addressed from
pleaded guilty or been found guilty,
a general viewpoint but also considered in the
and is a member of an Indigenous
context of the particular historical facts of a place.
community, the magistrate travels
The United Nations declared a decade for
to the accused’s community for
World Indigenous Rights from 1995 to 2004. The
the purpose of sentencing. The
UN hoped to promote the rights, languages and
magistrate and other persons sit
cultures of all Indigenous peoples and to draft a
in a circle, discuss the matter and
Charter of Indigenous Human Rights.
arrive at an appropriate sentence.
Circle sentencing works in the
As we saw in Chapters 2 and 5, Australian
The group will include the offender,
Indigenous people have faced serious challenges
the victim and their families, as
to their political autonomy since European settle-
well as respected members of the
ment. Their laws were radically different from
local Indigenous community.
sentencing?
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The ind iv id ual and th e law
Self-determination is a constant theme in
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C hap ter s u m m a ry M u lt i p le - c ho i c e q ues ti ons 146
s Rights and responsibilities are contained in both statute and common law. s Moral rights are not actually enforceable by law and therefore cannot be upheld in a court of law. s Australia is the only Western democracy that does not have a separate bill of rights. s The rights and responsibilities of individuals and the state have varied over time and extend from government interest in personal dress to conscription in wartime to antiterrorism measures that go much farther in limiting people’s rights. s The Australian Constitution contains a few express protections for individual rights, and the High Court has recently defined an implied right to freedom of political communication.
How are legal rights protected? A by statute law B by common law C by both statute and common law D by ethics and religious customs Which of these statements about moral rights is true? A They have no legal basis. B They can be enforced. C They are the same as legal rights. D None of the above Which of these statements is true? A Every state in the world has a bill of rights. B A bill of rights can only be drafted by the United Nations. C A bill of rights is a document setting out the rights of individual citizens. D A bill of rights is part of Australia’s Constitution.
s International efforts to articulate and protect rights are contained in numerous conventions, treaties and declarations. There are often difficulties in enforcement, as some states do not recognise these agreements or have not incorporated these rights in domestic legislation. s The right to self-determination is an internationally recognised right of peoples.
What sort of right is the right to euthanasia? A a common law right B a legal right C a moral right D none of the above How is the right to freedom of speech protected? A by statute B by common law C by both common and statute law D it is not protected by either statute or common law
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The ind iv id ual and th e law
C hap ter s u m m a ry ta s k s
Outline the arguments for and against a bill of rights in Australia. List two examples of how rights are protected by statute and common law in Australia. Describe the difference between moral and legal rights, using examples. Give an example of a conflict between the rights of individuals and their responsibilities to the state, and discuss how it might best be resolved. Discuss the right of Indigenous people in Australia to self-determination. Explain the concept of circle sentencing. Why might it be effective?
Explain the reasons for constructing declarations of rights. List some examples of such declarations. What other rights are not expressly contained in the Australian Constitution, but enjoyed by Australians as a result of statutory or common law? Discuss. How does defamation pose a threat to individuals’ free expression? What defences are available to someone who has critical things to say about a political figure? How are internationally recognised rights protected in Australia? Discuss.
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CHAPTER 7
k e y t er m s
c hap ter ob j e cti ve s
Resolving disputes
148
In this chapter, students will: s investigate the roles of various law enforcement agencies s discuss various methods of dispute resolution between individuals s investigate formal and informal methods of dispute resolution between individuals and the state s assess the effectiveness of legal and non-legal instruments in resolving disputes between individuals and the state s compare and contrast individuals’ disputes with other individuals and with the state s identify the difference between formal and informal methods of challenging state power as the state attempts to enforce rights s identify and apply appropriate legal terms and concepts.
alternative dispute resolution apprehended violence orders (AVO) arbitration Australian Federal Police conciliation freedom of information (FOI) law enforcement agencies mediation negotiation state police
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IM PORTA N T L EGIS L AT ION
Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Crimes Act 1900 (NSW) Family Law Act 1975 (Cth) Income Tax Assessment Act 1936 (Cth) Privacy Act 1988 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth) Anti-Discrimination Act 1977 (NSW) Freedom of Information Act 1989 (NSW)
The ind iv id ual and th e law
rel ev ant l aw
odd l a w The Northern Territory National Emergency Response Act 2007 (Cth) required people buying more than $100 of alcohol to provide photographic identification and to state where they intended to drink it. In 2009, police said it hadn’t brought about any increase in prosecutions for criminal offences of any type. Bottle shop records indicate that drinkers often mocked the law, with purchasers stating that they intended to drink the alcohol in locations such as ‘at the prime minister’s residence’.
SIGNIFIC AN T C AS ES
Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994) Croome v Tasmania [1997] HCA 5
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law enforcement agencies those bodies that have the role of enforcing the law; they are created by Acts of Parliament and include the police and some government departments
)NT RODUC T ION This chapter will examine the nature of disputes
resolution. It will investigate the role of various law
between individuals and how they can be resolved
enforcement agencies in upholding statutes at
in a variety of ways. It will also look at individuals’
both state and federal level, as well as some of the
disputes with the state over issues such as wrongful
legal restrictions placed on these agencies.
apprehended violence orders court orders to protect a person who fears violence or harassment from a particular person. In NSW, ‘apprehended personal violence orders’ prohibit violence between members of the public; ‘apprehended domestic violence orders’ prohibit violence in the context of a family.
arrest or access to information, and methods of
state police law enforcement agencies with statewide jurisdiction
, AWENFORCE MENTA GE NCIES 4HEPOLICE
The police have rules that they must obey when they perform these duties. To ensure that evidence
3TATEPOLICE
is collected correctly and thus is able to be used
Police do not make the laws; they only enforce
by the prosecution in a court case, the police are
them. They try to see that law and order in a com-
covered by a code of practice. This code covers:
munity are maintained by preventing unlawful
s police powers to stop, search and detain
acts, investigating crimes and arresting offenders.
people s police powers to enter and search premises and seize property s police powers to arrest, detain and question suspects s the way in which suspects and others are to be treated by police. Each state and territory in Australia has its own police force. The New South Wales Police Force is primarily concerned with enforcing criminal law, particularly those offences contained in the Crimes Act 1900 (NSW). Some of the most serious crimes are clearly those against the person, such as homicide, manslaughter and sexual assault. More recently, new laws have been passed to combat organised gangs and terrorist activities. Other aspects of state policing include assisting with mediation in family and neighbourhood disputes, particularly those involving domestic violence. The application and enforcement of apprehended violence orders restricting the movements of some individuals in relation to others
Figure 7.1 Vigilant police officers
150
is another part of the job of the state police.
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The ind iv id ual and th e law
A current issue for state policing is the use of taser or stun guns, also called Controlled Electronic Devices (CEDs), to subdue, apprehend and disable suspects. These weapons deliver a strong shock that disrupts the central nervous system. In 1995, a mentally unstable man, Roni Levi, threatened a number of people on Bondi beach with a knife. Police shot him dead after he ignored repeated warnings to drop his weapon. Advocates of CEDs argue that Mr Levi might still be alive today if police carried CEDs rather than firearms. There was a renewed call for CEDs to be carried by police in December 2008. This followed an incident in which Tyler Cassidy, a 15-year-old Victorian youth, was shot dead after brandishing a knife and making threats towards police. However, while healthy adults are unlikely to suffer lasting damage from a CED, abnormal heartbeat may
Figure 7.2 The Australian Federal Police enforce federal and criminal law across state boundaries.
be brought on in persons with existing heart disease or other risk factors such as mental illness, drug use or alcohol use, or high stress. A recent
Australians overseas. Crime legislation enforced
Amnesty International report, ‘Less than Lethal?’,
by the AFP includes the Crimes Act 1914 (Cth) and
documented the deaths of 334 people in the
the Criminal Code 1995 (Cth). Offences include
United States after CEDs were used on them. In
drug importation and distribution, and crimes
more than 40 of the cases, coroners found that the
relating to Commonwealth entities (e.g. bribery of
shocks had led to or contributed to the death.
Commonwealth public officials). The powers of the
Another problem with CEDs is that they are open to abuse by police officers and there appear
AFP are set out in the Australian Federal Police Act 1979 (Cth).
to be few guidelines or restrictions on their use,
Significantly, the nature of the AFP, and what is
leaving suspects at the mercy of some overzealous
required of it, have changed since 11 September
officers. Amnesty International’s study found that
2001. The AFP has reacted to a rapidly changing
90 per cent of those who died after having a CED
environment, particularly in relation to terrorism
used on them were unarmed and did not pose
and terrorist organisations. There is now a greater
a threat to the public. Information on the NSW
focus on international operations.
Ombudsman’s special report to parliament on the use of CEDs in NSW is found on page 164.
The new challenges the AFP faces include terrorism, human trafficking and sexual slavery, cybercrime and family matters. The AFP’s role
&EDERALPOLICE
in the family law process is to act upon specific
The Australian Federal Police are responsible
orders of the Family Court. Generally the AFP will
for enforcing federal law and criminal law where
enforce a court order where there is an actual
crimes cross state boundaries. The key role of
fear that a child may be removed from Australia.
the Australian Federal Police is to prevent and
Sections 65Y and 65Z of the Family Law Act 1975
detect crimes against Commonwealth law within
(Cth) provide that a child who is subject to family
Australia, and in certain circumstances, by
law proceedings must not be removed from
Australian Federal Police the federal police agency of the Commonwealth of Australia, set up to enforce the federal laws and to protect the interests of Australia both domestically and internationally
Cha pter 7 – Res ol vi ng di s putes
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the Commonwealth of Australia. A party who
move through air- and seaports. Customs works
removes or attempts to remove a child from the
closely with the Australian Federal Police, as well
Commonwealth of Australia may be sentenced up
as with the Australian Quarantine and Inspection
to three years’ imprisonment.
Service, the Department of Immigration and
Chapter 13 details the events of Mohamed
Citizenship and the Department of Defence, to
Haneef and the AFP’s investigations into Haneef’s
detect and discourage unlawful movement of
alleged role in a terrorist attack in Glasgow,
goods and people across the border.
Scotland. It is not the most glowing of reports, as
The Australian Customs and Border Protection
the AFP spent $8 million investigating Dr Haneef,
Service (ACBPS) employs more than 5500 people
only for him to be found to have been wrongfully
in Australia and overseas, has a fleet of sea patrol
arrested.
vessels, and uses two aerial surveillance planes for surveillance of borders. The key areas of concern
!DDITIONALLAW ENFORCEMENTAGENCIESIN !USTRALIA !USTRALIAN#USTOMSAND"ORDER 0ROTECTION3ERVICE The Australian Customs Service was renamed in late 2008 to recognise the importance of its role in maintaining the security and integrity of Australia’s borders. It was originally known as the Department of Trade and Customs and was the first government department established in 1901. Approximately 20 million passengers each year
for ACBPS are: s Immigration – ensuring that passengers are moving legally across borders s Quarantine – monitoring and confiscating goods harmful to animal and human life s Family law – enforcing court orders and preventing parents from illegally removing their children from Australia s Law enforcement. Protecting the Australian community through the interception of illegal drugs and firearms is a high priority and sophisticated techniques are used to target aircraft, vessels, cargo, postal items and travellers considered a risk. The techniques include intelligence analysis as well as the use of detector dogs and computer technology. In August 2008, the AFP seized 4.4 tonnes of MDMA, also known as ‘ecstasy’. X-rays and inspection of a suspicious shipping container that had arrived in Melbourne in June revealed 3000 tomato tins, which actually contained ecstasy tablets, not tomatoes. AFP commissioner Mick Keelty commented that the successful operation was a result of coordination between Customs, local police and the AFP. Sixteen people were arrested and drugs worth $440 million were removed from illegal circulation.
!USTRALIAN#RIME#OMMISSION (ACC) Figure 7.3 Illegal drugs being intercepted by Australian Customs and Border Protection Service.
152
The Australian Crime Commission (ACC) is a Commonwealth statutory body working nationally
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The ind iv id ual and th e law
Figure 7.4 ‘Technology-enabled crime’ encompasses both crimes committed directly against computers and computer systems and traditional crimes committed with the use of technology.
counter serious and organised crime. In NSW, the
!USTRALIAN(IGH4ECH#RIME #ENTRE
Australian Crime Commission (New South Wales) Act
The AHTCC is hosted by the AFP and attempts to
2003 (NSW) was passed to enable the full operation
provide a national approach to technology crime.
of the ACC in NSW. Similar legislation was passed
Its brief is to combat serious and complex crimes
in the other states and territories, effectively
involving computer technology, such as online
bringing the Australian Crime Commission Act
fraud, mule recruitment, and offensive and pro-
2002 (Cth) into state or territory law. All arms of
hibited internet content. ‘Technology-enabled
intelligence gathering and law enforcement were
crime’ encompasses both crimes committed
thereby brought together to unify the fight against
directly against computers and computer systems
serious, organised criminal activity.
and traditional crimes committed with the use of
with other federal, state and territory agencies to
The ACC has both intelligence and investigative
technology. The first category, detailed in Part 10.7
functions and capabilities. To better enable
of the Criminal Code 1995 (Cth), includes:
Australia to meet the threats posed by nationally
s computer intrusions (gaining unauthorised
significant crime, the ACC performs a number of
access to data in a computer or computer
important functions, including: s collecting and analysing criminal intelligence data s providing advice to the ACC Board on National Criminal Intelligence Priorities (NCIPs) s providing and maintaining effective and effi-
system) s unauthorised modification of data, including destruction of data s denial-of-service attacks (the deliberate impairment of service) s the creation and distribution of malicious soft-
cient criminal intelligence systems including
ware (e.g. viruses, worms, trojans).
the Australian Criminal Intelligence Database
Each state and territory in Australia has its own
s investigating federally relevant criminal activity and forming task forces, for example, Strike
mule recruitment the attempt to procure a person (the ‘mule’) to receive and deliver illegal funds to criminals abroad or at home without the knowledge of the ‘mule’; this is usually done through a fake company and may involve getting an unsuspecting employee to sign a contract and transfer funds on behalf of organised criminals
legislation, similar to the Commonwealth legislation, covering computer-related offences.
Force Tuno II, a homicide squad established to
Another task of the AHTCC is to police and
investigate a string of possibly related murders,
remove inappropriate and illegal internet content,
attempted murders and suspected murders
such as child pornography and racially based ‘hate’
over a 15-year period.
sites. Identity fraud is also a growing criminal
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expanding; it employs more than 1500 people and plans to grow to over 1800. ASIO’s information is used by 75 government departments, police, and senior decision-makers. Chapter 13 outlines the role of ASIO in the arrest and detention of terror suspect Mohamed Haneef, in which ASIO correctly advised the AFP that Dr Haneef was not a suspect in the 2007 Glasgow Figure 7.5 ‘Phishing’ lures unsuspecting computer users to provide financial details over the internet.
Airport bombing and that there was virtually no evidence linking Dr Haneef to this terrorist attack.
activity, especially with the increasing use of social
'OVERNMENTDEPARTMENTS
networking sites such as MySpace and Facebook.
Some Commonwealth and state government
Identities are usually stolen through ‘phishing’,
departments have the authority to enforce specific
whereby e-mail is used to lure unsuspecting
laws. The Australian Tax Office (ATO) has the
computer users to a fake website where they
power to enforce certain laws for the protection
provide their bank account details.
and benefit of society. For example, under the Income Tax Assessment Act 1936 (Cth), the ATO
!USTRALIAN3ECURITY)NTELLIGENCE /RGANISATION!3)/
can investigate and prosecute individuals or companies in relation to tax offences.
The Australian Security Intelligence Organisation
The main issues relating to income tax involve
(ASIO) is Australia’s national security service,
either the avoidance of tax or the under-payment
established under the ASIO Act 1979 (Cth). It
of tax. In 2007, Glenn Wheatley, manager of the
was initially established in 1949
singer John Farnham, was gaoled for three years
2%6)%7
as Australia’s security service,
for defrauding the Commonwealth of $318 000.
1 What is a law enforcement
to guard against activities such
Wheatley was using a so-called tax minimisation
agency? Give an example
as espionage (spying), sabotage,
scheme, sending income from the John Farnham
of a government body that
politically motivated violence, and
tour to another country without declaring it to
has enforcement powers and
attacks on our nation’s defence
the ATO. Another ongoing tax case is that of Paul
briefly summarise its specific
systems. ASIO’s main role is to
Hogan, star of Crocodile Dundee, one of the world’s
aims.
gather information that will help
highest grossing films. Hogan is alleged to have
the federal government and other
‘hidden’ some of his income from the ATO.
2 Explain the role of the police in the legal system. Comment on
law enforcement agencies such
Other laws administered by the ATO include
the importance of jurisdiction
as the AFP to prevent and thwart
those governing fringe benefits tax (FBT), the Goods
in law enforcement.
attacks on Australia. ASIO’s role is
and Services Tax (GST), and superannuation.
$ I S P U T ES B E T WEE N I N D I V I D U A L S Disputes between individuals are highly variable in
between individuals is that of ‘neighbourhood’
terms of their nature, complexity and seriousness.
disputes.
One of the more common types of disputes
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by Matthew Benns The Sun-Herald, 21 August 2005
Neighbours are more likely to argue with each other about garden fences than any other issue, new figures have revealed. In one instance, two neighbours ended up in court 78 times – their latest stoush involving claims of genital exposure. Almost one-third of all neighbour disputes that go to mediation with the Community Justice Centre Program involve fences. ‘People fight about everything to do with a fence – colour, height, paling or Colorbond, trellis or not,’ Program director Deborah Sharp said. But she suspected that, behind the fights over the garden fence, lay deeper issues that only came to a head with a disagreement about the fence. ‘Fences can cause conflict but quite often they argue about the fence when it’s really about lifestyle or cultural issues,’ Ms Sharp said. If mediation fails, neighbours turn to the courts. At Warriewood, two neighbours have taken each other to court 78 times, with the latest conflict being over an illegally constructed fence one claims she put up to protect her from her neighbour’s naked genitals. After disputes about fences, the next big cause of offence between neighbours is invasion of privacy, which could be anything from noise to arguing over a shared driveway. Neighbours also rowed about each other’s children, lifestyle and environmental factors such as smoke or noise, visitors, parking and plants, trees and shrubs in each other’s gardens. ‘The issue can seem quite small but because people get very distressed by it they lose perspective,’ Ms Sharp said. ‘We don’t make a judgment on the issue. Quite a lot of disputes start with the way children play in a neighbourhood. There is a domino effect – people take their children’s sides and whole streets get involved. Eventually somebody rings us and we go to everybody involved
The ind iv id ual and th e law
m e d i a cl i p
The naked truth and the myth of neighbourly love
in pre-mediation to find out what the issues are.’ A time is then set for a meeting. If the parties do not agree to setting the time the mediators know there is little hope of ever reaching a settlement. Sometimes the solution is as simple as organising a barbecue and ensuring that all the neighbours attend and get to know each other. Social analyst David Chalke of AustraliaSCAN said people felt their home, their neighbourhood and local area had become far more important in recent years. ‘In the 1980s and 90s we were cocooning and fortressing and running away from the world,’ Mr Chalke said. ‘We have invested a lot of money renovating our homes and installing massive TVs [so] that home is incredibly important to us. Before, it was just a base we used to go out into the world. Now home is our world. Also, because of the turmoil we have been through in the past decade, we are far less tolerant of people whom we believe are breaking the rules. We saw it over the Tampa episode where people were saying it was OK for Australia to take refugees, but they had to follow the rules. We want the system to force people to stick to the rules. We see on TV every night people grizzling about councils and neighbours. We see people getting compensation for wrongs and they think, hey, I can do that too.’ NSW has 3000 disputes a year that are mediated by the government-funded Community Justice Centre Program – 1000 of those are in Sydney. The Law and Justice Foundation carried out a survey two years ago in Bega in southern NSW and found that 12.7 per cent of the population had taken some form of legal action after a dispute with neighbours.
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beneficial outcome. It involves consideration of
alternative dispute resolution dispute resolution processes, such as mediation, arbitration and conciliation, that do not involve courts negotiation any dialogue intended to resolve disputes and/or produce an agreement on further courses of action mediation a form of alternative dispute resolution designed to help two (or more) parties, in the presence of a neutral third party, to reach an agreement conciliation a form of alternative dispute resolution in which the disputing parties use the services of a conciliator, who takes an active role, advising the parties, suggesting alternatives and encouraging the parties to reach agreement. The conciliator does not make the decision for them arbitration a form of alternative dispute resolution in which the disputing parties present their cases before an arbitrator, who makes a decision that is binding on the parties
the other party’s views, and often some degree of compromise. Many parents teach their children negotiating skills and you’d probably be surprised at how often you negotiate with friends, teachers and parents. In a legal sense, negotiation is frequently the first stage of resolving a dispute between parties. Negotiation only involves the parFigure 7.6 Alternative dispute resolution may be as simple as two parties talking it through, or as complex as court-ordered mediation or arbitration.
ties involved and therefore is usually low in cost.
-EDIATIONANDCONCILIATION Mediation and conciliation are similar processes and are usually confidential. Both processes involve
!LTERNATIVEDISPUTE RESOLUTION!$2
an independent and neutral third party who helps the parties to negotiate and reach a decision about their dispute that they both find acceptable.
Going to court can be expensive in terms of both
The mediator does not provide advice on the
money and time. There has been pressure to
matters or impose a decision on the parties. The
provide alternatives to court processes for solving
mediator may have not particular expertise in the
legal disputes. It has been estimated that the
subject area, but will be an expert in the process
average civil case costs $30 000–40 000, which
of mediation. Through his or her negotiation and
puts many average wage earners in a precarious
listening skills, the mediator is able to assist the
position should they lose. Logically, any claim
parties in examining the issues, and the parties
against another party for less than this amount
will come up with their own solutions to settle the
would seem useless, yet the financial cost of loss or
dispute.
damage below this amount may still be significant to the person who suffers it.
In conciliation, the third party also helps the parties to identify the issues, consider alternative
Alternative dispute resolution (ADR) uses a
options to solve the dispute, and reach an
variety of methods to resolve disputes between
agreement. In contrast to a mediator, the conciliator
parties without involving court processes. ADR
may advise the parties, although he or she does
allows the participants not only to save time
not make a decision for them. A conciliator may
and money, but also to have more control over
be a legal practitioner or professionally qualified
proceedings.
in the subject matter of the dispute. He or she
Alternative dispute resolution may be as simple
will be responsible for managing the process,
as two parties talking through their dispute, or as
explaining the rules and acting as an umpire. In
complex as court-ordered mediation or arbitration.
conciliation, the parties may also have their own
Mediation involves a neutral third party who
legal advisers.
attempts to help the parties come to an agreement. In arbitration, the neutral third party will make a
!RBITRATION
decision that is binding on the parties involved in
Arbitration is a formal dispute resolution process
the dispute. These are discussed below.
in which two or more parties refer their dispute to an independent third person (the arbitrator)
156
.EGOTIATION
for determination. It is useful when the subject
Negotiation means discussion between two or
matter of the dispute requires an expert and/or
more parties with the aim of reaching a mutually
when a court-like procedure is desired, but with a
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The ind iv id ual and th e law
greater degree of confidentiality. It is used when a contract specifies arbitration for resolution of any disputes arising, in industrial relations matters, and in tenant and landlord disputes. It has become the preferred procedure in Australia for disputes involving commercial contracts. The NSW teachers’ dispute with the Department of Education and Training in 2008–09 provides an example of how disputes can be resolved with a combination of arbitration and negotiation. During 2008, NSW teachers and their union, the Teachers Federation, failed in their attempt to negotiate with their employer, the Department of Education and Training, over staffing and salaries. A key point in their disagreement was that the government had decided to drop an incentive
Figure 7.7 Northern Beaches TAFE teachers protest about imposing work conditions proposed by the State Government, 6 November 2008.
scheme that gave teachers who undertook work in remote or disadvantaged areas a place at the top of the list for transfer to more desirable schools
funded by the NSW government
2 %6) %7
later in their careers.
and provide their services free of
1 Distinguish between the
The Teachers Federation decided to take the
charge.
processes of mediation,
case to the Industrial Relations Commission (IRC),
Matters dealt with by CJCs
the statutory body with the power to conciliate and
include family disputes and youth
arbitrate to resolve industrial disputes. However,
conflict, workplace grievances,
a date for the IRC to review the dispute was not
neighbourhood arguments and
alternative dispute resolution
available until March 2009. The teachers decided
community disputes.
rather than taking the other
conciliation, and arbitration. Where does negotiation fit in? 2 Why might someone prefer
this was too long to wait and undertook strike action
CJCs are designed to resolve
in November. Finally, the dispute was resolved in
disputes between members of
December 2008 through negotiation and the threat
the same community. As these
of more strike action in 2009. Although there were
people usually have an ongoing relationship, it is
several areas of compromise, the government
important that a dispute over something like a
withdrew the provision that schools would no
fence is resolved as quickly and economically as
longer be obliged to accept service transfers; the
possible with no long-lasting acrimony. A dispute
incentive transfer scheme was maintained; and the
over an issue such as who is responsible for the
teachers again had a legally enforceable collective
repair of a fence can be resolved at a CJC by the
agreement and greater job security, rather than
parties talking through their dispute with a neutral
individual contracts of limited duration.
mediator. It will be more satisfactorily resolved here
party to court? Give reasons.
than in a formal and confrontational courtroom.
#OMMUNITYJUSTICECENTRESAND #ONFLICT2ESOLUTION3ERVICE
existed since 1988 as a non-profit organisation
Community justice centres (CJCs) aim to resolve
to help solve disputes between neighbours. One
disputes through mediation. There are six centres
of the main methods used to solve disputes is
throughout NSW, providing informal and impartial
mediation. According to the CRS website, 83 per
dispute resolution services to all sections of the
cent of mediated neighbourhood disputes are
community and government agencies. CJCs are
solved by mutual agreement.
In the Australian Capital Territory, the CRS has
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4HE,ANDAND %NVIRONMENT#OURT
2 %3%!2 #( 1 Go to www.lawlink.nsw.gov.au/lawlink/ lec/ll_lec.nsf/pages/LEC_tree_removal_
The Land and Environment Court of New South Wales (LEC) is a specialist court with a wide jurisdiction. It has the same status in the court hierarchy as the Supreme Court of NSW, and is responsible for interpreting and enforcing environmental law in NSW. Proceedings that can come before the LEC include: s Administrative or merits review: the court re-
refusal and choose the case Bowan v Glanville [2008] NSWLEC 10. 2 Summarise the dispute between neighbours in relation to trees. Evaluate the court’s judgment. Why can’t the neighbours negotiate a settlement without resorting to the Land and Environment Court?
hears a case that has been decided by a body such as a local council s Civil proceedings arising from a breach or potential breach of the law s Criminal proceedings for environmental offences. The LEC’s jurisdiction is granted by more than
1 Define ADR. Outline some of the forms it may take. Which one do you think would
60 NSW Acts. It does not have the power to hear
have the most desirable results? Justify
matters outside that statutory jurisdiction. It deals
your answer.
with environmental, development, building and
2 If you are having problems with your
planning disputes, and certain types of native title
neighbours, why should going to court be
claims. Alternative dispute resolution is integrated
the last step taken?
within its procedures. Among the statutes granting the court jurisdiction
Figure 7.8 The court is able to make judgments on issues involving the removal or pruning of trees and who should pay.
2 %6) %7
3 What options are there for settling a dispute with your neighbour? Discuss,
is the Trees (Disputes Between Neighbours) Act 2006
with reference to the types of disputes
(NSW). This Act allows the court to make judgments
that might arise.
on issues involving the removal or pruning of trees and who should pay.
$ISPUTESWITHTHESTATE There are a number of methods by which state
the media of a decision they think is unfair, unjust
power or government decisions and policies can
or harsh. There have been many instances in
be challenged. Some of these are informal or ‘non-
which major networks have taken on a story and
legal’ methods, and others involve formal legal
caused the government to overturn a decision.
channels.
For example, it could be argued that children were released from migrant detention centres
158
.ON LEGALMETHODSOF CHALLENGINGSTATEPOWER
in August 2005 as a result of media pressure. If
4HEMEDIA
choose to listen and reverse a policy decision.
By writing a letter, sending e-mail or calling tele-
In this case, the Commonwealth Department of
vision and radio stations, citizens are able to inform
Immigration and Multicultural Affairs, as it then
individuals and pressure groups constantly appear on television and radio, the government may
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Figure 7.10 Maxine McKew, who won former Prime Minister Howard’s seat of Bennelong in 2007
was called, explained that it had ‘softened’ its
or the party that is in power. Some voters would
stance on the detention of immigrants.
argue that Mr Howard lost his seat because he was
The internet is a source of information and a
not attending to the needs of his electorate. Ms
means of communication. By means of common
McKew’s campaign focused on issues within the
interest
electorate.
websites,
people
can
get
together
physically, online or both to discuss situations
Some electorates or regions are significantly
where public officers have allegedly acted unjustly.
more affected by certain issues than others. If the
One such site, entitled ‘Whistleblowers Australia’,
Pacific Highway between Sydney and Brisbane
states:
were to be widened, residents of towns along this
The goal of Whistleblowers Australia (WBA) is to help promote a society in which it is possible to speak out without reprisal about corruption, dangers to the public and other vital social issues, and to help those who speak out in this way to help themselves. www.whistleblowers.org.au
The ind iv id ual and th e law
Figure 7.9 The forbidding exterior of the Woomera detention centre
highway could be directly affected. An MP in an affected area might be able to convince his or her party to reconsider an executive or Cabinet decision. However, this issue would clearly be irrelevant to residents of Western Australia. Members of the public can also contact their federal or state member of parliament, or local councillor, if they feel they have been wronged by a government department or agency in that
-EMBERSOFPARLIAMENT
jurisdiction. Local members and councillors can
Members of state and federal parliament (MPs)
help in resolving the dispute so that it does not
are elected by voters to represent a particular area
need to go to court or a tribunal. Local members
or electorate. For example, former Prime Minister
and councillors rely on being re-elected to their
John Howard held the federal seat of Bennelong, in
position, so it is in their interest to help their
Sydney, before being defeated by Maxine McKew
constituents resolve disputes quickly.
in the 2007 federal election. All citizens within an electorate are able to
4RADEUNIONS
contact the office of their representative and speak
Groups of people in various industries unite to form
to their MP about an issue that may trouble them.
trade unions to protect their rights and conditions
The MP may take this issue back to Parliament
of employment. Unions can help to negotiate
House in Canberra and discuss it with other MPs
a workplace agreement containing important
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Figure 7.11 ACTU union campaign, Your Rights at Work: a multimillion-dollar campaign to fight WorkChoices
provisions about workplace safety, wages and
the campaign, and asks supporters and union
conditions. They will also take action when an
members to join. ‘Your Rights at Work’ continued
employer proposes to change the conditions of
to exist after the 2007 federal election. Although
work in a way that is detrimental to employees.
the new government enacted new legislation,
In Australia, the legislative approach to industrial
some people believe that unions need to maintain
relations was historically based on conciliation and
pressure on any government to ensure that
arbitration. Going on strike is a last resort.
workers’ rights are not eroded.
In the early 1970s, one union, the Builders worksites so that various sites of heritage value
)NTERESTGROUPS INCLUDINGNON GOVERNMENTORGANISATIONS
in Sydney were not demolished for the purpose
People can also form groups where they share
of potential property development. These ‘green
political values or aims, or have a specific goal
bans’ were highly successful: a small park in
of challenging a state decision. Individuals can
Hunters Hill and terrace houses in Victoria Street,
choose to join these groups and engage in activity
Potts Point, still exist today. The historic area of
of various types, or donate money to fund their
Labourers Federation, banned workers from
Sydney known as ‘The Rocks’ was
activities.
2% 6)% 7
also saved and protected by the
For example, Greenpeace, a non-government
1 How would you go about
actions of unions placing bans on
organisation, was actively involved in the protest
challenging the state if they
work at the proposed demolition
and prevention of Japanese whaling in 2006. By
refused to award you the
sites.
manoeuvring their boats to positions that were
Higher School Certificate?
More recently the ACTU ran
directly in line with the whaling boat harpoons,
What laws and means would
an extensive and expensive cam-
the activists prevented the whale hunters from
you utilise to investigate why
paign entitled ‘Your Rights at
firing at whales.
you did not receive your HSC?
Work’. The campaign included
2 Which of the informal methods
Another
example
of
a
non-government
billboard posters, television and
organisation is Amnesty International, which is
of challenging state power
radio commercials to challenge
concerned solely with the protection of human
would be the most effective
the federal workplace relations
rights worldwide. To promote respect for human
and why?
laws, known at the time as ‘Work
rights, raise awareness of abuse and intervene
3 Evaluate the effectiveness
Choices’. The Australian Council
to protect people facing violations of their rights,
of informal methods of
of Trade Unions created a website
Amnesty publishes information, conducts research
challenging state power.
with information and updates on
and campaigns to raise money for its initiatives.
160
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%XTERNALREVIEWS
The ind iv id ual and th e law
,EGALMETHODSOF CHALLENGINGPOWER
Reviews of government activities can also be undertaken externally. There are a number of
Challenges to decisions of government or govern-
avenues by which an external review can be
ment bodies can also be made on a formal or legal
pursued. These include the following.
basis. A DM I NI STRATI V E A ND O TH E R
)NTERNALREVIEWS
TRI B U NA L S
In New South Wales, government departments
Administrative and other quasi-judicial tribunals are
can review their own decisions, procedures or
bodies that review specific administrative decisions
behaviour. Such reviews are very cost-effective,
of government agencies. They offer a time-efficient,
but can be ineffective in terms of practical out-
low-cost means of resolving legal disputes and
comes if the people conducting the review have
problems. They are different from courts, as they
been involved with a decision that is not appro-
have narrow areas of jurisdiction, are less formal,
priate or incorrect.
usually do not allow legal representation and are
A recent example is that of the Combined Pensioners and Superannuants Association of
not bound by rules of evidence and so can take into account a variety of factors in finding a solution.
NSW (CPSA). The organisation promotes the
Some examples of tribunals in New South
interests of pensioners and low-income retirees.
Wales are the NSW Consumer, Trader and
When a booking fee was introduced for country
Tenancy Tribunal, which deals with disputes
train fares in 2006, the CPSA applied to RailCorp,
between consumers and businesses, and the
the state-owned passenger rail system, to see
NSW Administrative Decisions Tribunal, which
documents related to community consultation.
hears cases involving allegations of discrimination
The Minister for Transport claimed that there had
and
been extensive consultation and that it indicated
administrative decisions of NSW government
‘overwhelming community support’ for the book-
bodies. For example, the Consumer, Trader and
ing fee. Previously, pensioners were entitled to
Tenancy Tribunal’s role is to resolve disputes
four free rail trips per year.
between tenants, landlords, traders and consumers
The CPSA’s application was made under the
professional
misconduct,
and
reviews
in a timely and effective manner.
Freedom of Information Act 1989 (NSW), which gives
The Administrative Decisions Tribunal has
people the right to obtain access to information
six divisions and an appeal panel. The divisions
held by government authorities, ministers and
will conduct reviews of decisions by government
other public agencies. The legislation also gives
agencies in the following categories:
the right to request changes to personal records
s the community services sector, including child
that are inaccurate, incomplete or out of date, and
care and disability services
to seek review of a decision not to grant access
s decisions of the Chief Commissioner of State
or to amend records. Other states and territories,
Revenue, many having to do with state taxation
and the Commonwealth, have similar freedom of
s professional conduct of legal practitioners and
information (FOI) legislation. The application was denied, so the CPSA requested an internal review. The review found that there had been no community consultation about the booking fee.
property conveyancers s equal opportunity claims referred to the Tribunal by the Anti-Discrimination Board s retail tenancy and ‘unconscionable conduct’ claims against retail landlords
freedom of information (FOI) the principle that people should be able to have access to information relating to the administration of government decision-making and information held by the government. FOI legislation governs the processes of obtaining this information, at state and federal level. conveyancers people who deal professionally with the legal and practical matters involved in the transfer of titles to property when real estate is sold and purchased
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s decisions of government agencies under a wide variety of laws (the General Division).
state privacy legislation to help people to protect their privacy.
The most frequent applications for review heard by the General Division of the Administrative
TH E C O U RTS
Decisions Tribunal have to do with freedom of
Law courts at both state and federal level have
information applications, privacy, and licensing
the power to review administrative decisions and
matters relating to firearms, the security industry,
actions. As discussed in Chapter 2, the term ‘judicial
passenger transport and the building industry.
review’ is used to describe a process whereby a court with the relevant jurisdiction can review a
PR IVAC Y BODIES
decision made by a government department only
All individuals have a right to privacy. Most people
on the basis of whether the decision was lawfully
would agree that that it is not a pleasant feeling to
made. Judicial review does not pronounce on the
know that somebody who is not close to you has
merits of the decision: that is, whether or not it
access to information about you.
was a good decision or the right decision in the
In a broad sense, laws have been enacted at
What is legal can vary depending on the circum-
about you from being released to companies,
stances of each case, but as general rule, decisions
government departments or other citizens. The
are subject to the following requirements:
Privacy Act 1988 (Cth) gives you the right to make
s Natural justice
a complaint if you think personal information
s You will study this concept in greater detail
about you, including health information, has been
in the HSC course. In this context, natural
mishandled by a Commonwealth government
justice refers to the person affected having the
agency or a private sector organisation. There are
opportunity to be heard, and the decision being
legal responsibilities that government departments
unbiased.
must carry out in the collection and storage of personal information of individuals. For example, if you have been convicted of a criminal offence, there are limits on how long information about this can be used. The Criminal Records Act 1991 (NSW) provides that after a person has been crime-free for a certain amount
162
circumstances.
both state and federal level to prevent information
s The decision must be authorised by the Act under which it was made and must be based only on relevant considerations. s The decision-maker must have jurisdiction to make the decision. s The decision must be justified by appropriate evidence.
of time, most minor offences are treated as
s The decision-maker must have observed all pro-
‘spent’ convictions. Once a conviction is spent, the
cedures required by law in making the decision,
person does not have to disclose it to prospective
and there must have been no errors of law.
employers, insurance agents, banks, and so on.
A person desiring judicial review must have
Unauthorised release of information about a
standing: that is, he or she must be directly
person’s spent conviction is subject to penalties.
affected by the issue. There would be huge costs
At the state level in NSW, the chief Acts protect-
associated with judicial reviews if they could be
ing privacy are the Privacy and Personal Information
ordered by any interested persons, whether they
Protection Act 1998 (NSW) and the Health Records
were directly affected or not.
and Information Privacy Act 2002 (NSW). Persons
If judicial review finds a decision flawed in one
who feel that their personal information has been
or more ways, the remedies that courts can issue
misused may either request an internal review or
will depend on the nature of the error that was
complain to Privacy NSW, established under the
made by the decision-maker. They include:
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The ind iv id ual and th e law Figure 7.12 One of the main areas of complaint received by the Office of the Ombudsman involves child abuse and neglect.
s prohibition – an order that stops a decision from being made or implemented s certiorari – an order that reverses a decision that has already been made
Junee Correctional Centre, government and nongovernment schools, and agencies providing child care and residential care. The ombudsman does not have the power to impose any punishment or
s mandamus – an order that compels the decision-
fine on a government agency or department. He or
maker to perform certain types of public duties
she can, however, make recommendations to the
that have not been performed
department in question or to the New South Wales
s injunction – an order that prohibits the decisionmaker from implementing an invalid decision, or
Parliament. Some of the main areas of complaint received
compels the performance of a duty in decisions
by the office involve:
where mandamus is not available.
s delivery of community services s child abuse and neglect
THE OFFIC E OF T H E OM B UD SMAN
s the operation of the police force. Any citizen can make a complaint to the ombud-
In 1809, the Swedish Parliament created a new
sman, but it must be in writing. All complaints are
official known as the ‘Justitieombudsmannen’.
taken seriously, but are only followed through if a
This loosely translates as ‘citizens’ defender’ or
prima facie case exists – that is, if the complaint
‘representative of the people’. The Office of the
would raise concern ‘on first view’. Such concern
Ombudsman was created by statute in 1974 in New
could only exist if there were witnesses to an
South Wales, and federally in 1977.
event or if a citizen had very strong and irrefutable
The office acts as a formal external control,
evidence.
with legal power to investigate complaints made by
If a complaint is made in writing, the ombuds-
citizens. Public sector agencies and some private
man’s office will investigate and assess whether
sector agencies providing public services can use
the complaint is justified. If it sees that the
the ombudsman’s office to deal with complaints
complaint is justified, the ombudsman will make
against them or their officers: for example, RailCorp,
recommendations for rectifying the problem.
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m e d i a cl i p
NSW Ombudsman calls for freeze on Taser guns By Belinda Merhab The Australian, 20 November 2008
THE NSW Ombudsman has recommended a two-year freeze on further roll-outs of Taser guns, saying police standards for their use are inadequate, and the health risks are unknown. Bruce Barbour told state parliament yesterday that general-duties police, who were issued the stun guns last month, were using Tasers at a higher rate than special operations police, who began using them in 2002. ‘It is clear the number of incidents where Tasers will be used in the future will increase significantly,’ Mr Barbour said. ‘There is already evidence of this. Tasers have been used on people on five occasions in the first two weeks of general-duties use. This compares with only 48 incidents over a fiveyear period’ by special unit officers.’ The Ombudsman’s investigation found officers from special units had predominantly used Tasers from a distance, but in the first two weeks of use by general-duties officers, in four out of the five incidents the Tasers were used in drive-stun mode, where the gun is applied directly to skin or clothing. The use of Tasers, which stun a victim by emitting a 50 000-volt electric shock, have been linked to heart complications and death. Queensland police last week Tasered a 16-year-old girl who had ignored police instructions to move on, because she was waiting with a sick friend for an ambulance to arrive. In another case, a 56-year-old NSW man who had threatened police with a frying pan died 12 days after receiving three Taser shocks. According to his death certificate, the man, who had heart disease, hepatitis C and schizophrenia, died of a heart attack. Mr Barbour was unable to say whether the Taser played a role in the man’s death. NSW Police Commissioner Andrew Scipione said he was only made aware of the man’s death through the Ombudsman’s report on the case.
164
Mr Scipione said there was a training manual for the use of Tasers, and officers had to get an 80 per cent pass rate in a written exam before they were accredited to use the weapon. Mr Scipione said Tasers had been drawn, but not necessarily used, 70 times since last month’s roll-out of the weapons. He said there had not been related injuries to police or citizens. Every Taser use was recorded by an inbuilt camera and was then downloaded and reviewed by Deputy Police Commissioner Dave Owens, he said. But Mr Barbour said general-duties police were inadequately trained and informed on Tasers and the associated dangers. ‘They do not give adequate guidance about situations where they shouldn’t be used,’ the Ombudsman said. ‘It must be remembered that Tasers are not a non-lethal weapon, they are just a less lethal weapon.’ Mr Barbour recommended a two-year review into Taser use, and said the standards that deemed Tasers safe applied only to healthy people.
Figure 7.13 The use of Taser guns by the police is a controversial issue.
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were sent to gaol as a result of the NSW Royal
2 %6 ) %7
Statutory bodies are authorities created by
Commission). However, it has been argued
1 Explain the process
statute for a public purpose. The following
that the inquiry into Aboriginal deaths in
of internal review of a
statutory bodies can investigate complaints
custody has failed to produce significant
government agency’s
and disputes of certain types.
improvements in the conditions leading to
decision. What are the
these deaths.
potential problems with
ANTI- D ISC R IMIN AT ION BOAR D OF
internal review?
NSW (ADB)
I NDEPENDE NT C O M M I SSI O N
The Anti-Discrimination Board of NSW
A G A I NST C O RRU PTI O N (I C A C )
is part of the NSW Attorney General’s
While the Ombudsman has the power to
Department and was established under
investigate complaints made by the public,
the Anti-Discrimination Act 1977 (NSW). Its
the
Against
administrative and other
role is to promote principles and policies
Corruption (ICAC) has greater power. The
tribunals play in settling
of equal opportunity throughout NSW,
ICAC Act 1988 (NSW) created the ICAC as an
legal disputes. Give an
to ensure that people are protected from
independent statutory body to investigate
example.
discrimination on the basis of characteristics
alleged corruption in government. ICAC
such as disability, age, race and sex. It
attempts to protect the interests of the pub-
advises the government and also provides
lic, prevent breaches of public trust, and
an inquiry service to inform people about
influence the behaviour of public officials.
Independent
Commission
2 Explain the function of
their rights and responsibilities under
Some examples of corrupt behaviour
anti-discrimination laws. The Board will
include bribery, fraud and theft. ICAC has
investigate and conciliate complaints when
the power to investigate the activities of pri-
action is necessary. It has the power to
vate citizens if such behaviour affects the
issue fines for behaviour that violates anti-
proper administration of public offices. ICAC has the authority to ask the police
discrimination laws.
The ind iv id ual and th e law
3TATUTORYBODIES
service to assist in its investigations, and
freedom of information legislation. 3 Describe the role
4 Outline the ways in which people’s privacy is protected in NSW. 5 What is judicial review? How does it differ from review of the merits of a decision? 6 Outline the role of an ombudsman. How is an ombudsman limited in solving disputes?
COM M ISSION S OF IN Q UIRY
is therefore able to search for and seize
7 Explain the importance of
Commissions of inquiry are set up to
evidence where it sees fit. It does not have
natural justice as the state
investigate serious matters at both state
the power to prosecute offenders (that is the
attempts to enforce laws.
and federal level. They are not judicial
job of the Director of Public Prosecutions).
proceedings, but fact-finding exercises.
At the end of an investigation it can report
Royal Commissions are commissions of
to parliament that corrupt behaviour has
2 %3%! 2# (
inquiry with particularly strong powers
occurred, who committed it, and what
1 Visit the ADB website:
with respect to calling witnesses. In the
further action should be taken. If a citizen
past, such inquiries have investigated
feels that he or she has been wrongfully
issues such as Aboriginal deaths in custody
accused of corruption, he or she may seek
(Commonwealth, 1987) and corruption in
judicial review in the New South Wales
from the left-hand menu
the NSW police service (NSW, 1995).
Supreme Court.
and follow the link to ‘Legal
http://www.lawlink.nsw. gov.au/ADB 2 Choose ‘Resources and links’
cases from Equal Time’.
Commissions of inquiry do not have the
In 2005, ICAC investigated a claim that a
power to prosecute offenders. At the end
private tutoring firm was assisting English
of an inquiry, the commission will produce
Extension II students with work that was
evaluate the effectiveness
a
recommendations,
ultimately submitted as part of their HSC
of the ADB in bringing
which may include recommending criminal
assessment. Although ICAC did not ‘prove’
about just outcomes. You
prosecution of individuals. The government
that students had been assisted, it raised
should include a case that
may decide to act on the commission’s rec-
serious concerns about assessment tasks in
has been dismissed by the
ommendations: a number of police officers
the HSC that are of a ‘take-home’ nature.
ADB.
report
containing
3 Discuss two cases and
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s the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) s the Convention on the Elimination of All Forms of
Rape widespread during civil war
Gay student bashed
Racial Discrimination (CERD) s the Universal Declaration of Human Rights
(EADLINES FROMAROUND THEGLOBEAND ATHOME
(UDHR). The last declaration is the most widely known and longest standing (1948) and aims to address some of the issues raised in the following headlines.
Refugees sent to Nauru
Aussie faces execution
Human rights bodies under the umbrella of the UN include the Commission on Human Rights,
Human Rights today-Amnesty International booklet.
now known as the Human Rights Council, whose state members discuss and debate human rights
Figure 7.14 Headlines frequently carry breaches of human rights.
concerns. There are also committees that monitor each of the conventions listed above, and that can rule on individual complaints relating only
AUSTRALIAN HUMAN RIGHTS COMMISSION
to a single convention. The UN Human Rights
The
Commission,
Committee is one of these. It rules on individual
AHRC, is a national government body, formerly
complaints pertaining only to the International
called the Human Rights and Equal Opportunity
Covenant on Civil and Political Rights (ICCPR). State
Commission. It was established by an Act of the
signatories to the First Optional Protocol to the
federal parliament, the Human Rights and Equal
ICCPR have agreed that their citizens can seek an
Opportunity Commission Act 1986 (Cth). The Federal
opinion from the Committee regarding breaches
Attorney-General is the minister responsible for
of the ICCPR.
Australian
Human
Rights
the Commission.
In 1991, a Tasmanian man, Nicholas Toonen,
As detailed in Chapter 5, the Commission plays a
complained to the Committee that certain
central role in contributing to the maintenance and
sections of Tasmania’s Criminal Code criminalised
improvement of a tolerant, equitable and demo-
his sexual orientation. In the case, Toonen v
cratic society. It provides information through public
Australia (1994), it was argued that the Tasmanian
education programs aimed at the community,
legislation breached Articles 2, 17 and 26 of the
government and business sectors. It also holds
International Covenant on Civil and Political Rights
public inquiries, advises parliament,
(ICCPR): namely, the right to privacy and the right
2%3 % ! 2#(
conducts research and investigates dis-
to equal treatment before the law. The Human
Go to www.hrweb.org/legal/
crimination complaints.
Rights Committee ruled that the Tasmanian law constituted a violation of individuals’ privacy
undocs.html
4HE5NITED.ATIONS
under Article 17 and that Tasmania should amend
of the human rights treaties
International treaties and declarations
its criminal code.
listed on p 166.
containing key principles of human
1 Investigate the provisions
2 Briefly summarise the purpose of each of these treaties.
rights include:
the Human Rights (Sexual Conduct) Act 1994 (Cth)
s the International Covenant on Civil
to override the offending sections of the Criminal
and Political Rights (ICCPR) s the
reluctant to change its laws. It took a High Court
types of rights contained
Economic, Social and Cultural Rights
decision (Croome v Tasmania [1997] HCA 5), which
in the ICCPR and the types
(ICESCR)
held that Tasmania’s law was inconsistent with the
of rights contained in the ICESCR.
International
Covenant
Code 1924 (Tas). Nonetheless, Tasmania was on
3 Compare and contrast the
166
The federal government responded by enacting
s the Convention on the Rights of the Child (CROC)
Commonwealth Act, to force an amendment to the Criminal Code.
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T he ind iv id ual and th e law
To p i c s u m m a ry M ul ti p l e- c hoi ce q ue s ti o n s Top i c s um m ar y t a sks
s Law enforcement agencies at local, state and federal level have the task of enforcing laws and rights within their jurisdiction. These include state and federal police, ASIO, Customs (ACBPS), the Australian Crime Commission and the Australian High Tech Crime Centre. s The nature of policing has changed dramatically since 2001 in response to terrorism, cybercrime and border protection. s Disputes between individuals can be resolved using various legal (formal) and non-legal (informal) methods.
s Disputes between individuals and the state can also be resolved using formal and informal methods. The state does not have unlimited or arbitrary power. s The Australian Human Rights Commission and the Anti-Discrimination Board of NSW carry out vital roles in enforcing legislation that protects these rights. s Cases such as Toonen v Australia and issues such as the use of CEDs illustrate the ongoing need for law reform in relation to human rights and their enforcement.
State and federal police officers: A make and enforce laws B enforce laws C investigate criminal laws in New South Wales D none of the above The AFP’s role has A changed dramatically since 2001 B remained unchanged since 1901 C been modified by NSW Police D been seconded by ASIO When disputing parties present their cases to an independent person who makes a decision that is legally binding, the process is known as: A negotiation B mediation C arbitration D all of the above
Informal methods of challenging state power include: A media, trade unions and external review B trade unions, internal review, courts C members of parliament, trade unions and media D internal and external review and media Statutory bodies include: A the ADB, the AHRC and ICAC B Amnesty International, ADB and ABC C ADB, AFP and the media D ABC, ADB and the ATO
Outline the roles of the AHRC and the ADB of NSW. Explain why individuals and the state require such bodies. Describe the role of at least three law enforcement agencies in NSW or Australia. Explain how the role of one law enforcement agency has changed since 2001. Discuss the use of Taser guns by police forces to subdue and detain criminal suspects.
Identify and describe a recent dispute between individuals that has been solved through mediation, arbitration or negotiation. What is your opinion of the AHRC, the ADB of NSW or ICAC? Do you think we need such bodies?
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CHAPTER 8
k e y t e r ms
c hap ter ob j e cti ve s
Contemporary issue: The individual and technology
168
In this chapter, students will: s investigate the way in which the law has an impact on the interrelationship between individuals and technology in cyberspace s identify the key features of the relationship between the individual and technology in cyberspace s describe how the individual relates in cyberspace to other individuals, to institutions, organisations, corporations and governments s investigate the nature of the interrelationship between the individual, the legal system and cyberspace s discuss the effectiveness of the legal system in addressing issues that relate to the individual in cyberspace.
copyright cyberbullying cyberspace cyberstalking digital dossier disinhibition effect extradition Internet Service Providers (ISPs) internet laissez-faire libertarians online predators
patents racial hatred terrorism trademarks
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IM PORTA N T L EGIS L AT ION
Communications Decency Act of 1996, 47 USC § 230 Copyright Act 1968 (Cth) Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Crimes Amendment (Computer Offences) Act 2001 (NSW) Criminal Code 1995 (Cth) Cybercrime Act 2001 (Cth) Privacy Act 1988 (Cth) Racial Discrimination Act 1975 (Cth) Racial Hatred Act 1995 (Cth) Spam Act 2003 (Cth) Trade Practices Act 1974 (Cth)
The ind iv id ual and th e law
rel ev ant l aw
odd l a w The Spam Act 2003 (Cth) makes it an offence to send, or cause to be sent, unsolicited commercial e-mail messages. Other countries, including the USA and the UK, have similar legislation. However, the global volume of spam doubled in the year ending 30 June 2008, according to research by UK online security company Marshal. The report attributed the quantity of spam to spam criminals controlling networks of thousands of infected personal computers, which allow them to send up to a million spam messages for as little as $5–10. The report also found that 29 per cent of internet users have actually purchased goods from the spam they receive.
SIGNIFIC AN T C AS ES
Reno v American Civil Liberties Union, 521 US 844 (1997) Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 United States of America v Ivanov, 175 F Supp 2d 367 (D Conn 2001) Department of Internal Affairs v Atkinson and Others (High Court of New Zealand, 19 December 2008)
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4HESCOPEOFNEWTEC H NOLOGY Governments face many challenges in trying to
users in the world and growth shows no sign
make regulations and laws where technology is
of slowing. As a result, cybertechnology and
concerned. The main difficulty is that technology
cyberspace are major areas of interest for citizens
is often on the cutting edge of development and
and lawmakers all over the world.
therefore often gives rise to issues that have
This chapter will focus on the individual in
rarely or never been raised in political, legal and
cyberspace and explore some of the key issues and
community discussions.
legal implications of new technology for the ind-
As Australians, we are exposed to technology
ividual, as well as the evolution of law in response
every day – from making EFTPOS transactions,
to these issues and the challenges for law reform
internet a global network of interconnected computer networks that allows users to obtain and share information in a number of ways
shopping on the internet, and e-mailing our
in protecting individuals’ rights.
technology – that is, the storage, sending and
Nearly three decades after the novelist William
cyberspace the ‘environment’ in which electronic communication occurs; the culture of the internet
retrieval of information through computer systems.
Gibson coined the term ‘cyberspace’ in his
‘Information’ is a broad category encompassing
1982 story ‘Burning Chrome’, the internet has
data of all types. Information may be expressed in
become so widely available that it has forever
mathematical form, as computer code, verbally, or
changed our lives. Today, people are spending
in some other type of language.
more and more of their time in cyberspace for
libertarians advocates of minimal government control or interference in the lives of individuals
friends, to being involved in discussions about the ethics of stem cell research, genetically modified foods, and cloning of animals or humans. An important area of technology is information
4HEJURISDICTIONOF CYBERSPACE
One of the most important and interesting
entertainment, leisure, business, communication,
technological developments, particularly in terms
education, research and even political activism.
of the law, has been the creation of the internet.
New developments in technology have long been
Currently, there are well over 1.5 billion internet
the catalyst for great social, cultural and economic changes. However, the changes now being brought about by technological innovations relating to the internet are affecting our lives with unprecedented speed and in unpredictable ways. Cyberspace is the global online virtual world created by the interconnection of millions of computers on the internet. By the beginning of the 21st century, cyberspace has emerged as a kind of parallel universe in which people live a part of their lives. We now speak of our online and our offline lives. Like any other new area of human activity, there is a need for law applicable to cyberspace. Currently, no government or court can claim cyberspace as its exclusive jurisdiction. Its global nature poses particular challenges for the law. In 1996, the American writer and political activist John Perry Barlow published ‘A Declaration
Figure 8.1 ATM transactions are now commonplace technology.
170
of the Independence of Cyberspace’. This short
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The ind iv id ual and th e law Figure 8.2 John Perry Barlow, who wrote ‘A Declaration of the Independence of Cyberspace’ in 1996
manifesto declared that government has no
2 % 3 % ! 2# (
legitimacy in cyberspace, and that those who
Refer to Chapter 8 on the Student
‘gather’ there have formed a democratic and
CD for information relating to:
egalitarian social contract that has no need of
s The history of the internet
external controls.
s The birth of the World Wide Web
Despite the optimism of anarchists and libertarians, it has become painfully apparent that cyberspace is no different from any other
s Visions and visionaries of the World Wide Web s Architecture of the internet
Go to www. internetworldstats.com/ top25.htm and list the top ten countries with the highest internet penetration rate.
area of human activity. There is the potential for great good but also for great harm, and laws and regulations are needed.
,EGA LISSUESI NC YBER SPACE 4HENATUREOFCYBERSPACE
if you wish. While domain names are actually
There are at least three distinctive features of
identifiers for computers on the internet, and the
cyberspace that pose unique challenges for legal
IP number (physical address) of the computer
regulation.
being used can usually be determined, there is
s It facilitates anonymity. The internet has
software that can be used to encrypt internet
made it much easier for persons to distribute
activity or to hide identifying information
information and messages anonymously or
about
using a pseudonym. Web-based e-mail services
feature of cyberspace has certain advantages
and many online discussion forums allow you
for individuals’ privacy, but it also provides
to create a user name and hide your identity
opportunities for cybercriminals.
where
a
website
originated.
This
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2/9/09 8:16:09 PM
Figure 8.4 The speed at which cyberspace grows means that the law struggles to keep pace.
Figure 8.3 At work in cyberspace
s It
facilitates
creativity.
The
computers
connected to the internet do not just retrieve information as a television receives programs from a network; they also permit information
familiar categories, but they may also take on new characteristics. Some of the areas of law concerning cyberspace are as follows.
and services to be created and supplied through the internet. They can be used to create software programs that improve their
#YBERCRIMES
performance or enhance or change their role.
H A C K I NG
This feature makes the internet unlike any
Hacking is unathorised access to data held in
other electrical device or network that has ever
a computer or computer system, changing the
been developed.
data, interfering with electronic communication
s It is global. The internet went from being a
between computers, or impairing the security,
collection of networks in the United States
reliability or function of stored electronic data. A
to being a global system. Cyberspace lacks
person may engage in hacking out of curiosity, for
national boundaries. Like-minded
monetary gain, to alter data for some other reason,
people can communicate with each
or maliciously to spread a virus. Hacking also has
other and join online communities
the potential to be used in an act of terrorism.
2% 6)% 7 1 List some of the positive
regardless of where they live in the
The Cybercrime Act 2001 (Cth) amended the
aspects of the global nature of
world. However, the negative side
Criminal Code 1995 (Cth), as well as the Crimes Act
cyberspace.
to the lack of national boundaries is
1914 (Cth) and several other Commonwealth Acts.
that it is difficult for a nation-state
It created offences pertaining to computers, data
especially with respect to the
to control what goes on within its
and the internet, now contained in the Criminal
enactment and enforcement
territorial borders, if those activities
Code 1995 (Cth). As these are federal offences,
of laws.
are also taking place in cyberspace.
there must be a ‘Commonwealth connecting
2 List some of the drawbacks,
factor’: for example, the computers are owned or
172
!REASOFLEGALCONCERN RELATINGTOCYBERSPACE
operated by the federal government, the data is
Even in cases where jurisdiction is clear, there
network’ – which includes the internet.
held by the federal government, or the offender’s actions are carried out via a ‘telecommunications
are difficulties with enforcement of the law in
A hacker may also be charged under state law.
cyberspace. Criminal and civil wrongs in cyber-
For example, in 2001, a former employee of the
space can sometimes be classified into the
company that installed a computerised sewerage
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The ind iv id ual and th e law
system for Maroochy Shire Council, Queensland hacked into the council’s computers and caused one million litres of raw sewage to run into public parks and creeks in the Sunshine Coast area. He was convicted on various charges stemming from his breach of s 408D of the Criminal Code 1899 (Qld), which prohibits unauthorised use of identification information for the purpose of committing an indictable offence. The legislation is not specifically about computer hacking. He appealed to the Queensland Supreme Court, where convictions on two of the charges were set aside but the sentence of two years’ imprisonment was not changed (R v Boden [2002] QCA 164). Figure 8.5 Hackers are criminals. Refer to Chapter 8 on the Student CD for information relating to United States v Ivanov, 175 F Supp 2d 367 (D Conn 2001).
Another type of scam is ‘phishing’, in which the recipient of e-mail that appears to be from a bank is asked to submit his or her account details. The information is then used to steal the person’s
INTERNE T F R AUD
money.
Fraud is intentional misrepresentation or conceal-
Fraud may also be perpetrated through the
ment of information in order to deceive or mislead.
use of fake websites. In Australian Competition
On the internet, fraud can be carried out in a
and Consumer Commission v Chen [2002] FCA
number of ways and can occur in conjunction with
1248, the Australian Competition and Consumer
hacking.
Commission (ACCC) sought declarations from
A scam is an attempt to obtain money through
the Federal Court of Australia that a foreigner,
deception. Many scams, unique to the internet,
Richard Chen, had breached key provisions of the
have developed in recent years. They can function
Trade Practices Act 1974 (Cth) prohibiting conduct
through unsolicited e-mail, websites promoting
likely to mislead or deceive consumers. Chen, an
pyramid selling (where people are offered the right
American, did not live in Australia and all of his
to sell a product or service, as well as the right
activity was conducted from the United States.
to sell the scheme itself in the same way), and
He operated three websites that appeared to be
unsolicited advertisements that come up when a
associated with the Sydney Opera House, and
search is performed.
purported to sell tickets to performances there.
Perhaps the most well-known e-mail scams are
The stated price for the tickets was twice the price
the ones in which e-mail promises the recipient
of genuine ones, and consumers who provided
huge rewards for helping a government, a bank, an
their credit card details never received tickets.
organisation or a family in Nigeria (or some other
The Federal Court granted the declarations, as
country) out of some legal or financial difficulty.
well as an injunction requiring Chen to remove
This assistance invariably involves transferring
the websites, take steps to prevent Australian
money electronically or supplying bank account
residents from accessing them, and stop operating
details.
misleading and deceptive websites.
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legal links
commercial electronic messages through e-mail, For further information on internet
instant message services (IM), telephone text
fraud see the AFP website: www.
messages (Short Message Service, or SMS), or
afp.gov.au/national/major_
multimedia message service (MMS). It does not
fraud/internet_scams
cover faxes, voice telephone calls or messages, or unsolicited ads that pop up to be seen by an internet user. The Act was passed as a result of public concerns about spam. As discussed above, e-mail can be used for the purpose of fraud. The ways in which people’s e-mail addresses and personal information are collected and handled for the purpose of ‘spamming’ also raises privacy issues. Although the Spam Act applies to any spam regardless of content, a significant portion of the unwanted spam that people dislike contains advertisements for pornography and other products related to sex, illegal gambling schemes, pyramid selling, and misleading or deceptive advertisements. Its method of distribution means that inappropriate material can be sent to minors. The Spam (Consequential Amendments) Act 2003
Figure 8.6 People can be betrayed by spam. Senders can elicit money from gullible victims.
(Cth) amended the Telecommunications Act 1997 (Cth) and the Australian Communications Authority
2%3 % ! 2#(
S PAM
Act 1997 (Cth) to enable effective enforcement.
1 Go to these two websites and find
Spam is junk mail received
The Spam Act is enforced by the Australian
definitions for the scams listed
electronically.
spam
Communications and Media Authority (ACMA), a
below:
is harmless but much of it
Commonwealth statutory authority responsible for
s www.scamwatch.gov.au/content/
is malicious and potentially
the regulation of radio and television broadcasting,
index.phtml/tag/internetScams
damaging to the recipient. Spam
telephone communications, and the internet.
s www.thebestscams.com/ – Online auction and shopping scams
Some
is also known as unsolicited bulk e-mail. In other words, this is e-mail that the the recipient
– Domain name renewal scams
has not asked for or granted
– Spam (junk mail) offers
permission to have sent to
– Free offers on the internet
him or her. It is bulk because
– Modem jacking
it is sent to large numbers of
– Spyware and key-loggers
people, often through the use of
– Ringtone scams
mailing lists. It does not matter
– Up-front payment scams
what the content of the e-mail
2 Make a list of the other types of
is; if it is unsolicited it is spam.
internet scams.
Under the Spam Act 2003 (Cth), it is illegal to send, or cause to be sent, unsolicited
174
Figure 8.7 Despite legislation against spam, it still proliferates.
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1 Name three types of crime committed by means of the internet. Explain how each of these can cause harm to people. 2 What is fraud? How can it be committed by means of the internet? What are some
The ind iv id ual and th e law
legal links
2%6)%7
For further discussion of spam and what is being done internationally to tackle it, visit some of the following websites: s www.platywebs.com.au/ spamlaw.php
other ways fraud can be committed,
s www.accc.gov.au/content/index.
besides the internet?
phtml/itemId/54073
3 What is spam? Is it merely an annoyance,
s www.spamhaus.org/definition.
or does it raise serious legal issues?
html
Explain, using examples.
To see the current Australian
4 List legislation that has been passed
spam legislation, visit the following
specifically to deal with cybercrime.
site and enter ‘Spam Act 2003’ into
What other legislation has been used
the Quick Search field:
to prosecute crimes committed in
www.comlaw.gov.au/
cyberspace?
2% 3%!2#( Refer to Chapter 8 on the Student CD
1 Go to the ACMA website and find out how to make complaints about spam:
for information relating to Department
www.acma.gov.au/
of Internal Affairs v Atkinson and Others (High Court of New Zealand,
2 Go to the ACMA website and outline
19 December 2008)
the various ways in which spam is being fought in Australia: www.acma.gov.au/WEB/STANDARD/ pc=PC_310308
)NTELLECTUALPROPERTYIN CYBERSPACE
are a number of treaties and
2 %3%!2# (
The term ‘intellectual property’ refers to crea-
international organisations that
Go to the website of the
tions of the mind that have commercial value.
deal specifically with intellectual
World Intellectual Property
These include inventions, literary works, artistic
property issues on the internet.
Organization (WIPO):
works, music, software programs, databases,
Intellectual property law pro-
plant varieties, trademarks and designs. Most of
tects the legal rights arising from
these things can be created or published on the
a person’s intellectual creations.
internet.
It
applies
not
to
the
ideas
www.wipo.int/about-ip/en/ 1 Locate WIPO’s definition of intellectual property. 2 Make a list of the treaties
Intellectual property is the exception when
themselves but to the expression
regarding intellectual
it comes to international law and cyberspace.
of these ideas. So the idea must
property. They can be found
In many areas of law, international treaties do
have developed into something
at www.wipo.int/treaties/en/
not distinguish between offences committed
tangible – for example a software
in cyberspace and otherwise; however, there
program or an essay – to qualify
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C O P YRI G H T
Copyright is the type of protection given to work intended to convey information or enjoyment of literary form, such as books, software, broadcasts, films and music. Material that has been produced in Australia is protected by the Copyright Act 1968 (Cth) and also receives protection under the laws of other countries that are signatories to the international treaties of which Australia is a signatory. The international conventions that ensure that any protection given to Australian creative works also apply globally are: s Berne Convention for the Protection of Literary and Artistic Works (1886) s Universal Copyright Convention (1952) s Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) s World Trade Organization Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) (1994) s WIPO Copyright Treaty (1996) s WIPO Performances and Phonograms Treaty (1996) New challenges for the law relating to copyright have arisen as a result of digital technology – that is, information represented by discrete signals. Computers are digital machines and cyberspace is therefore a ‘digital environment’. Digital technology has made it very easy to copy and share music and film, and the legal issues relating to this are Figure 8.8 WIPO Headquarters in Geneva, Switzerland
explored in Chapter 15. Another major area of copyright violation
for protection. Three types of intellectual property
involves computer software that is copied and sold
rights are copyright, trademarks, and patents.
without authorisation, causing losses of billions of dollars to the companies that originally created the programs. Such unauthorised production is
l e ga l l i nk s
copyright an exclusive right to publish, copy, publicly perform, broadcast, or make an adaptation of certain forms of expression, namely sounds, words or visual images
in breach of the World Trade Organization agreeFor further information, go to
ments, negotiated and signed by most of the
the WTO site and read about
world’s trading nations. If countries refuse to act
intellectual property treaties:
against intellectual property violations within their
www.wto.org/
borders, other countries whose companies are suffering loss as a result can ask the WTO to take action.
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TRAD EM A R K S
causes disadvantage to the people who produce
Trademarks are signs or symbols that give a person
that art and information, some have argued that
or corporation the legal right to use, license or sell
with the rapid development of cyberspace, we need
the product or service for which it is registered. A
to rethink the concept of property and the laws that
trademark distinguishes a person’s or company’s
govern property of all types.
product from all others’ products. Some registered trademarks have become famous images that will forever be associated with certain brands
Refer to Chapter 8 on the Student CD for
of goods.
information relating to: s cyber-warfare
PATENTS
s cyberterrorism
Patents are for the protection of intellectual prop-
trademarks words, names, symbols, devices or any combination of these, used to identify and distinguish the goods or services of one company from those of another
T he ind iv id ual and th e law
Figure 8.9 Trademarks of major companies make them readily identifiable.
patents rights granted for any device, substance, method or process which is new, inventive or useful
encourage people to continue research or develop new products or technology. A patent gives the owner the exclusive right to derive commercial benefit from the invention for the term of the patent, within Australia and its territories. International agreements regarding patents, such as the Patent Cooperation Treaty (1970), give our trading partners
l eg al l i nks
erty in inventions. The aim of patent laws is to
For information on trademarks see www.ipaustralia.gov.au/trademarks/ what_index.shtml For further information on patents see www.ipaustralia. gov.au/patents/index.shtml
similar rights and ensure that the patent rights of Australian inventors are upheld overseas. Of these three types of rights – copyright, trademarks and patent – copyright has the most
2 %6 ) %7
relevance to cyberspace. Information technology
1 What is a property right?
has greatly reduced the cost of reproduction of text, images and multimedia products, and the internet has similarly reduced the cost of transportation and
(Refer to Chapter 3.) Explain the specific nature of intellectual property rights, in contrast to other kinds of property. 2 What can be protected by each of the following? Explain how
distribution. (Consider the difference between a
each of these works.
truckload of books and the same content published
s copyright
electronically.) The ‘culture’ of the internet has been
s trademark
a further factor in problems relating to intellectual
s patent
property: many resources are freely shared in cyberspace, with no or minimal commercial profit expected. While the ease of obtaining information and entertainment without paying for it clearly
3 How are intellectual property rights affected by the increasing use of the internet? Discuss, with examples. 4 Outline some of the legal means of protecting intellectual property in Australia and internationally.
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0RI VA C Y S A F E T Y A N D CE N S O R S H I P cyberbullying harassment using digital media such as websites, e-mail, chat rooms, social networking pages or instant messaging cyberstalking repeated harassment using e-mail, textmessaging or other digital media with the intention of causing fear or intimidation
There are a number of ways in which individuals
stage, as online information remains indefinitely
are vulnerable in cyberspace. These include:
in cyberspace.
s cyberbullying
Another potential danger of revealing too
s cyberstalking
much about oneself is that false identities are
s racial hatred
easily created, and the person with whom you are
s exposure to violent, disturbing and/or illegal
communicating may not be genuine. Parents may
material including child pornography s exposure to adult material inappropriate for children s intrusions into privacy.
be justifiably concerned about online predators, who assume an identity in order to entice young people into harmful encounters online or in the physical world.
In cyberspace, there are few barriers between
For others, the disinhibition effect may contri-
disinhibition effect the tendency to say and do things in cyberspace that the person wouldn’t ordinarily say or do in the face-to-face world
individuals and potentially harmful content. In
bute to behaviour such as rude language, harsh
addition, people who have grown up with the
personal criticism, or violent online games. At the
internet and are comfortable using it and other
extreme end of the continuum, the disinhibited
forms of digital technology may be less cautious
behaviour may include threats, cyberbullying or
than those who have adapted to it and adopted it
cyberstalking.
online predators people with malicious intent, such as sex offenders, pedophiles, who give false and misleading identities with the aim of enticing their victims into harmful encounters online or in real life
at a later point in their lives.
racial hatred abuse or denigration of a person because of his or her race, or verbal abuse or denigration of a race generally
178
Racial hatred is illegal in Australia under the
Online, people tend to loosen up and reveal
Racial Discrimination Act 1975 (Cth). The Racial
things that they would be less likely to divulge in
Hatred Act 1995 (Cth) amended this Act to extend
their offline world. Psychologists call this feeling of
its coverage, giving people a mechanism to com-
invincibility the ‘disinhibition effect’.
plain about racial hatred. In the offline world
Social networking sites such as MySpace and
racial hatred may occur through speech, gestures,
Facebook and online communication media such
images or written publications. This law applies
as chat rooms require varying degrees of public
equally to cyberspace, at least for people under
personal disclosure – that is, information of a
the jurisdiction of Australian law. As with other
personal nature is shared in what is essentially
types of expression, it is relatively easy for anyone
a public forum. The impression that friends
to fan racial hatred in cyberspace. In late 2008,
are ‘chatting’ in a controlled, private space is
there were calls in Australia to toughen laws on
an illusion. Other people can access this infor-
cyber-racism after a spate of occurrences on social
mation, either immediately or at some later
networking sites.
Figure 8.10 Facebook® is an online social networking site that requires personal information.
Figure 8.11 In late 2008, there were calls to toughen laws in Australia on cyber-racism that was occurring, particularly on social networking sites.
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Student CD for information relating to cyber-racism. See media clip, ‘Call to overhaul cyber-racism laws’.
The Privacy Act 1988 (Cth) contains ‘Privacy
The ind iv id ual and th e law
Refer to Chapter 8 on the
Principles’ covering federal government agencies and relating to the handling of citizens’ personal information such as social security, health insurance and taxation. Amendments to the Act in 2000 extended the privacy regime to parts of the private sector, relating to how businesses should collect, store, use and disclose personal
2%3%!2#( Research the laws involving cyber-racism in Australia and evaluate their effectiveness. Start with the following website: www. humanrights.gov.au/racial_discrimination/ cyberracism/index.html
information. Some states and territories, including NSW, have also enacted privacy legislation; others have privacy schemes for government agencies based on the privacy principles contained in the federal Act. There is currently no statutory tort for breach of privacy. However, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001]
0RIVACYCONCERNS
HCA 63, the High Court held that there was nothing
The information that we present about ourselves
there have been several cases heard in state courts
online, including photographs, forms our ‘digital
that point towards the recognition of such a tort.
standing in the way of developing one. Since then,
dossier’. This ‘digital dossier’ comprises all the
In 2008, the Australian Law Reform Commission
information about a person, which is held in
(ALRC) published a report titled For Your Infor-
multiple locations.
mation: Australian Privacy Law and Practice, in
Governments and businesses have always
which it recommended extensive changes to
collected information about individuals but now
privacy laws and practices to take account of new
the speed of data collection practices has outpaced
technology, as well as a way that individuals can
methods of protecting that data.
bring a civil action for serious breach of privacy.
digital dossier all the types of information about a person that he or she has deliberately or unintentionally put onto the internet, held in multiple locations
There has been a trend towards the use of services and storage of files, documents, e-mail and other personal information online, on sites that the user does not own or control, and need not have knowledge of or expertise in their creation or maintenance. Individuals have little control over how the most powerful search engines use their information. Information, stories, photos and anything else you may post on a website may be removed later, but they have already been recorded in an internet archive, as well as in a search engine ‘cache’ – a ‘snapshot’ that is taken of the page as it originally appeared. Other people may also copy your words or photos and post them on their own websites or web pages. So your information acts like a ‘digital tattoo’: even when it’s no longer wanted for display, it is not easily removed.
Figure 8.12 Identity theft is one of the many crimes that can be committed in cyberspace.
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Although the federal Privacy Act is only 20 years old, it was introduced before the advent of supercomputers, the
Internet,
mobile
phones,
digital
cameras,
e-commerce, sophisticated surveillance devices and social networking websites – all of which challenge our capacity to safeguard our sensitive personal information. The Privacy Act has worked pretty well to date, but it now needs a host of refinements to help us navigate the Information Superhighway. These days, information privacy touches almost every aspect of our daily lives, including our medical records and health
Figure 8.13 Does digital security exist?
status, our finances and creditworthiness, the personal details collected and stored on a multiplicity of public and corporate databases, and even the ability to control the display and distribution of our own images.
0ROTECTINGCHILDREN
David Weisbrot, ALRC President (Media release, ALRC, 11
One of the most significant concerns about cyber-
August 2008), www.alrc.gov.au/media/2008/mr1108.html
space is the need to protect children, not only from inappropriate content and online predators, but from serious criminal offenders who victimise
2%6)%7
children. Child pornography is a legal and moral
1 How are cyberbullying, cyberstalking and cyber-racism different from their counterparts in the physical world? 2 Should laws against these acts be specifically drafted to relate to cyberspace, or are existing laws adequate? 3 List some non-legal ways that could be used to
problem that goes beyond the legality of images or text on the internet or other media. In the United States, laws drafted to protect children from inappropriate material must be drafted in such a way as not to violate the right
protect against cyberbullying, cyber-racism and online
to freedom of expression contained in the First
predators. Consider the following agents in your answer:
Amendment. Another difficulty is that if a law is too
s parents
broad in the scope of what should be prohibited,
s teachers and schools
it can prohibit too much – including content that
s older teenagers (e.g. siblings, friends or mentors of
is unlikely to be accessed by children or to have
younger children)
anything to do with the victimisation of children.
s software companies
This and other issues will be further examined
s internet service providers
later in the discussion of the proposed ‘clean feed’
4 How might someone’s ‘digital tattoo’ pose problems
legislation in Australia.
for him or her in the future? List some hypothetical scenarios, then outline ways that you can prevent this from happening with respect to your online activities.
Reno v American Civil Liberties Union 53 In 1996, due to public pressure, the US Congress
l e g al l i nk s
passed a law known as the Communications Decency Act of 1996 (CDA). Two provisions of the For further information on digital safety issues, see the Australian government’s Net Alert website: www.netalert.gov.au/
CDA prohibited the ‘knowing’ transmission on the internet of obscene or indecent sexual communications or images to people under 18 years of age. This was seen by many as a violation of the principle of freedom of expression. One of the
180
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!CLEANFEED
sation called the Electronic Frontier Foundation
Similar concerns about offensive and obscene
(EFF), an international non-profit group based in
content have been raised in Australia more
the US and particularly concerned with preserving
recently. The idea of ‘clean feed’ legislation origi-
freedom of speech in the context of the internet.
nated during the Howard federal government and
John Perry Barlow, mentioned above, was a
involved the establishment of a filtering scheme
founding member of the EFF and the CDA was the
that would be imposed on all Internet Service
stimulus for his ‘Declaration of the Independence
Providers (ISPs).
of Cyberspace’.
The Labor government that was elected in
Following a federal court’s ruling that the CDA
2007 continued to consider the proposal. The
violated the First Amendment, the US government
$70 million plan would block web pages listed in
appealed to the Supreme Court. A broad coalition
a ‘blacklist’ maintained by ACMA. It was argued
of individuals and groups had joined the American
that not only would this prevent internet users
Civil Liberties Union (ACLU) as plaintiffs in the
from seeing unwanted and inappropriate material,
original case, including not only the EFF, but also
but would combat child pornography itself. Two
organisations and trade unions of editors and
potential types of filter were canvassed. Either
publishers, high school journalism teachers, and
all pornographic material would be blocked, or
Human Rights Watch. The ‘Reno’ in the title of
an ‘opt-in’ scheme would allow users to continue
the case was Janet Reno, Attorney General of the
receiving ‘adult material’.
United States from 1993 to 2001.
The mandatory proposal was much more
The Supreme Court, affirming the lower court’s
restrictive than the voluntary ISP filter schemes
decision, held that the indecency provisions of the
operating in some European countries, which
CDA were an unconstitutional restriction of free
block only child pornography. One version of the
speech. The court found that the terms ‘offensive’
scheme in Australia would include a wider range
and ‘indecent’ were vague, and the provisions of
of material, some inappropriate for children but
the CDA overly broad, concluding that the CDA
not necessarily involving pornographic or violent
was not sufficiently narrowly tailored to the goal
content. ‘Social themes’ upsetting to children
of protecting minors from potentially harmful
could include divorce and euthanasia.
material. Moreover, there is no effective way to determine the age of an internet user.
Internet Service Providers (ISPs) companies that offer customers access to the internet World Wide Web a system of documents that are accessible on the internet and that are connected to each other through hyperlinks on which the user can click to be taken to another location. The World Wide Web is not the same thing as the internet.
The ind iv id ual and th e law
groups that held this view was an advocacy organi-
It has been pointed out that criminals distributing child pornography seldom use sites
The court’s view was that online communi-
that are accessible on the World Wide Web.
cation differs significantly from broadcast media,
Increasingly, they are using less public methods
in that a user will seldom encounter content ‘by
such as peer-to-peer networks, which allow single
accident’. The internet should therefore be subject
computers to communicate with each other;
to less regulation.
encrypted networks, or smaller networks using codes that only the members know; or other
l e ga l l i nk s
systems that prevent public access. Consequently, blocking websites is not an effective means of For full text of the decision in Reno
v American Civil Liberties Union, 521 US 844 (1997) see http:// caselaw.lp.findlaw.com/cgi-bin/ getcase.pl?court=us&navby=case &vol=000&invol=96-511
stopping the spread of child pornography. Some internet service providers dislike the proposal because it is too easily bypassed by users, and because enforcement would be too onerous. Another objection is the risk that the filter would block material that has nothing to do with the type of content that the law aims to fight.
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Figure 8.14 On 5 May 2008, a seminar about internet censorship was held at the Nobel Peace Center in Oslo, Norway. Debate continues around the world about governments’ rights to introduce mandatory ISP filtering.
2 I G H T S I N C Y B E R S P A CE laissez-faire a French word literally translated as ‘allow to do’, used to describe economic philosophies that government should not intervene in business; may also be used in a broader sense of minimal government intervention in most aspects of society
,AISSEZ FAIREAPPROACHTO RIGHTS Some internet commentators advocate a laissezfaire approach to information, which means they do not think it should be regulated in any way. They argue that individuals are capable of determining the quality of internet content and that governments should not intervene in the ‘marketplace of ideas’. One of the organisations taking
2% 3%! 2#( See Barlow’s ‘A Declaration of the Independence of Cyberspace’, of 8 February 1996, at http://homes.eff.org/
Foundation,
which
was
founded
in 1990 with the primary goals of defending free speech, privacy, and consumer rights.
and to ensure reasonable quality overall. The advocates do not trust the marketplace of ideas. They advocate a more active role for governments in regulating quality on the internet. This approach would involve: s enacting legislation and or international treaties s imposing obligations on ISPs to block certain content s strengthening enforcement agencies. The Australian government has taken a more interventionist approach in the debate about ‘clean feed’ regulation. Other means of dealing with questionable material in cyberspace have been suggested. Many
)NTERVENTIONIST APPROACHTORIGHTS
of these methods of improving the quality of infor-
Other commentators argue that an
both private and public. These include not only
that governments should
appropriate role for governments is to
governments, lawmakers, and law enforcement
keep out of cyberspace.
ensure that the law deals with online
agencies, but also parents, teachers, software com-
~barlow/Declaration-Final.html 1 What are the key points of the speech? 2 Discuss Barlow’s assertion
182
this line is the Electronic Frontier
phenomena such as race hatred and pornography,
mation rely on the active involvement of online communities and of key actors and stakeholders,
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2 %6 ) %7
need to take a leadership role, but would also need
1 How is the debate about government
to give the other agents considerable freedom and
regulation of internet content in the USA
scope. Some of the ideas include the establishment
different from the form that it takes in
of national or international bodies for the accredit-
Australia? How is it similar?
ation of websites; greater use of reputation and
2 Do you think Reno v ACLU would be decided
industry ratings systems, as used by YouTube, eBay
in the same way today? Give reasons for
and iTunes; greater use of brands and labels (‘trust
your answer. How likely is it that an internet
marks’); government funding of internet awareness
user might encounter content ‘by accident’?
and digital media literacy skill classes in schools; search engine filtering; and encouragement of social norms, for example as Wikipedia has done with respect to the requirement of a ‘neutral point of view’ in all of its content. In most cases, the law can only set minimum
Give examples. 3 What were the positions of the two sides in the ‘clean feed’ debate? 4 Outline at least one argument for each side in the philosophical debate about how governments should approach individual
standards. Making laws in relation to cyberspace
rights regarding internet content. Be sure
is very difficult, as there is a dearth of inter-
to provide reasons (evidence) for the claims
national agreements. Most of the laws regarding cyberspace are national laws which are tied to
The ind iv id ual and th e law
panies and other businesses. Governments would
that each side might make. 5 Think of at least one objection to the
local values. Limits on national law enforcement
argument for each side’s view. Which view
remain despite the global nature of the internet.
is the more plausible? Justify your answer.
#U RRENTS TAT U SA NDSOU RCESOF LAWI NC YBER SPACE The sources of law in relation to cyberspace are as follows.
There are also Acts at federal and state level that specifically pertain to cyberspace activity, such as the Spam Act 2003 (Cth).
.ATIONAL
#OURTDECISIONS
3TATUTES
Superior courts can create precedents in relation
Nation-states have produced numerous laws to
to the legalities of activities in cyberspace. As
govern use of the Internet within their borders.
we saw, the US Supreme Court’s decision in
Many laws relating to cyberspace are contained
Reno v ACLU that the indecency provisions in the
within more general statutes. For example, the
Communications Decency Act of 1996 were uncon-
Crimes Act 1900 (NSW) contains sections 308 to
stitutional restrictions on free speech resulted
308I, which set out computer offences, including
in those statutory provisions being struck down.
hacking. These provisions were added in 2001
Although courts in one country are not bound
by means of the Crimes Amendment (Computer
by decisions in another country (that is, foreign
Offences) Act 2001 (NSW).
decisions cannot serve as precedent), judges
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sometimes refer to cases from other countries in
This includes trade aspects of intellectual
their decisions.
property, which are dealt with via the TRIPS agreement. See www.wto.org/english/tratop_e/
)NTERNATIONAL
trips_e/trips_e.htm The WTO also deals with
Unlike other areas of law where issues cross
tratop_e/ecom_e/ecom_e.htm
national boundaries, there are few specific inter-
s Internet Corporation for Assigned Names and
national treaties that deal specifically with cyber-
Numbers (ICANN): This non-profit corporation
space. Given the exponential rise in internet use
was established in 1998 to coordinate the
since the 1990s, one would expect that there
naming system on the internet which is used
would be many international treaties to deal with
to identify all websites. It has international
common issues faced by all nation-states. This is
representation but is very much under US
yet to occur, however.
government control. ICANN’s role is strictly
Some international organisations and their
limited to the management of the domain
current roles with respect to governance in cyber-
naming system. However, it has the potential
space are listed below.
to become the most powerful organisation
s The United Nations: The UN has little control
overseeing the internet if in the future there
over the internet or what happens in cyberspace,
is a wider representation of the international
except in the area of intellectual property. There
community. See www.icann.org/en/about/
are no UN-sponsored treaties or conventions
s Internet Assigned Numbers Authority (IANA):
that are specifically designed to govern cyber-
IANA is one of the oldest internationally organ-
space. Intellectual property aspects of internet
ised institutions, having been established by
use are looked after by WIPO.
the US Defence Information Agency in 1972 for
s The World Intellectual Property Organization
the purpose of assigning unique addresses to all
(WIPO): WIPO is a specialised agency of the
computers connected in networks at that time.
United Nations concerned with intellectual prop-
In 1973 the addressing system known as the
erty. See www.wipo.int/portal/index.html.en
Internet Protocol, or IP, became the accepted
s European Union (EU): The EU is an economic
way of connecting all networked computers. In
and political partnership of European nations
1984 a simpler way of naming internet address-
that has regulatory powers in various areas
es was worked out with the establishment of
of social and economic life. In 2003, the EU
the name server. Up to this point every internet
reformulated its regulatory framework covering
address was known by a long number such as
communications, to cover ‘all electronic com-
121.255.098.4. Now, simpler names could be
munication networks and services’, and began
assigned to these numbers to produce easy-
to review that framework in 2008 to ensure that
to-remember addresses. So, an IP address
it stays current. The EU has made a number of
like 121.255.098.4 could become an easy-to-
treaties relating to cyberspace. Parties to the
remember name like ‘business.com.’ In 1985
Council of Europe Convention on Cybercrime
this was formalised as ‘Domain Name System’,
(2001), for example, include 38 European
or DNS, and the top-level domain names
countries, Canada, Japan, Montenegro, South
such as .com, .net and .org were introduced.
Africa, and the USA. For more information on
In 1998 IANA became part of ICANN. Today
the EU, see http://europa.eu/index_en.htm
it manages over 20 million domain names,
s The World Trade Organization (WTO): The WTO looks after trade matters between nations.
184
E-commerce matters: see www.wto.org/english/
with around 40 000 registered every day. See www.iana.org/
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7HYLAWSARENEEDED
lawsuit by alleged victims of fraud. Without the
In order to combat cybercrime of all sorts, there
threat of prosecutions to limit the relatively small
must be enforceable laws. Cyberspace is a new
number of dishonest users, cybercrime could ruin
and exciting development in society, but arguably
an online business. Governments are needed,
there is no reason to think people are any better
to create an environment where the rule of law
able to regulate social behaviour there than in any
prevails and where law enforcement mechanisms
other place, in the absence of external authority.
will deter those who break the law.
In 1995, when eBay was founded, the company’s
Governments provide public goods that enable
owners did not believe that they needed to rely on
individuals and businesses to use the internet
government or laws to make their online business
effectively. These public goods are:
work. They had an online ‘feedback forum’ where
s the cable network and communication laws
buyers and sellers could post praise and complaints
s criminal law
about one another and their transactions, and
s laws governing property rights
one ‘customer support person’ who was paid
s enforcement agencies.
$100 a month to resolve disputes. However, with
Essentially, the smooth functioning of the
the growth of the company, scams began to
internet depends on governments preventing
proliferate. Goods were offered but not delivered,
harm and protecting rights. Countries whose
hundreds of would-be buyers were affected, and
governments do a poor job of this are finding that
it was only a matter of time before eBay faced a
big companies are refusing to do business there.
The ind iv id ual and th e law
&U T U REDI REC T IONS
Figure 8.15 Cyborgs are the way of the future …
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3TRATEGIESFOR GOVERNMENTS In their efforts to exert control in cyberspace, gov-
#HALLENGESTO GOVERNMENTCONTROLOF CYBERSPACE
ernments do not have to be completely effective
One of the greatest challenges for governments is
to be adequately effective. Achieving perfect legal
that each new technological innovation tends to
control is quite often just too expensive.
make it easier for the law to be violated in some way. Often there will be a race between people using
extradition the handing over of a person accused of a crime by the authorities of the country where he or she has taken refuge, to the authorities of the country where the crime was committed
)NTERMEDIARIES
new technology to avoid the law, and authorities
One way in which governments can exert control
using new technology against the lawbreakers. It
over content is by enlisting local intermediaries
can be quite costly for governments to chase and
such as internet service providers and the com-
shut down illegal operations in cyberspace. Also,
panies that control the physical internet connec-
only developed (first world) countries have the
tions. They can also influence the policy of what
financial and other resources to do this.
goes on the local portals for search engines. By
Another major difficulty for governments
utilising financial intermediaries, such as PayPal,
seeking to control content is the risk of censorship.
banks or credit card companies,
As we have seen, this is of particular concern to
a government can wield huge
countries with explicit protection for freedom
influence over an industry –
of expression. On the other hand, countries
indeed, can cripple it without
that have no qualms about limiting free speech,
going to court.
such as China and Saudi Arabia, have achieved
2% 3%! 2#( 1 Go to the website of the Commonwealth Department of Broadband, Communications
Needless
to
say,
some
unprecedented control over internet content
and the Digital Economy and
countries that have utilised these
locate the page discussing ISP
methods are not known for
filtering: www.dbcde.gov.au/
As there are many different legislative regimes
having a high regard for freedom
communications_for_consumers/
in the world, what is illegal in one country may be
of expression or for corporate
funding_programs__and__
permitted in another. In the absence of effective
independence from government.
international conventions to deal with content
support/cybersafety_plan/ internet_service_provider_isp_ filtering
0ROSECUTIONOF INDIVIDUALCRIMINALS
within their jurisdictions.
that has human rights implications, such as child pornography, some nations have implemented measures such as ISP filtering.
2 Choose ‘Part 3: International
Quite often the simplest way a
Survey Final’ and research
government can assert control
the ISP filtering schemes
over cyberspace is by physically
implemented by the nine
arresting an individual suspected
2 %6) %7
European countries surveyed.
of cybercrime. The difficulty is
1 Why are strategies involving the use of
3 How do these schemes attempt
that the person must be within
intermediaries (such as ISPs, companies
to protect innocent content
the territorial borders of the
that provide physical infrastructure, and
providers and internet users
government that is seeking him
banks) problematic? List some of the
while filtering out objectionable
or her. Otherwise, extradition
objections that could be made to these
material?
treaties can be used to remove
strategies.
the person from the country
2 Name three problems for governments
objectional material that they
where he or she has taken
seeking to make certain types of web
target?
refuge.
content illegal.
4 What are the types of
186
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criminals to slip back into anonymity once they know they have been detected.
4HECHALLENGEOFTRANSNATIONAL CYBERCRIME
terrorism. Cyberterrorism is usually understood
Cybercrime is big business and it poses a challenge
to mean unlawful attacks or threats of attack
for law enforcement agencies. Crimes such as data
on computer systems, with the intent to cause
theft, data tampering, and the creation of viruses
harm or fear and to bring about some political or
and worms are enormously damaging. Companies
ideological objective. For example, it might involve
also tend to under-report the effects of cybercrime
the disruption of infrastructure, such as electrical
on their business because they do not want the
systems or computer networks.
adverse publicity.
Another type of crime on the internet is
The only binding international treaty on
ISPs are not capable of blocking criminal
cybercrime to have been formed to date is the
activity unless they have the specific details of
Council of Europe’s Convention on Cybercrime
which user is involved. In combating cybercrime
(2001), which entered into force in July 2004.
the enforcement agencies have to work quickly
However, it has been difficult getting countries
to deal with criminal acts because it is easy for
to agree to sign the convention due to sensitivity
terrorism violence or the threat of violence, directed at an innocent group of people for the purpose of coercing another party, such as a government, into a course of action that it would not otherwise pursue
The ind iv id ual and th e law
'LOBALLAWS
Figure 8.16 The laws that govern cybercrime have to constantly evolve in order to match the speed and growth of cyberspace.
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about sovereignty and authorising third parties
Some of ICANN’s achievements have included:
to do cross-border searches. Also, there are civil
s decentralisation of the sale and distribution of
liberties concerns that the treaty jeopardises free
domain names, which led to a significant drop
speech and privacy rights. Forty-three nations
in the price of registering a domain name
had signed the convention as of 2009, but only about a third of these had ratified it. Though the
s establishment of an effective method of resolving trademark disputes
aims of the treaty are noble it has not yet made
s reduction in the incidence of cybersquatting –
a significant contribution to fighting cybercrime.
that is, making a profit from the use of someone
Nations are still relying on unilateral action and
else’s domain name.
ad hoc cooperation with a few other like-minded
Most of all, ICANN has ensured the stability
nations to fight cybercrime. However, the Convention on Cybercrime (Draft 25), along with the recommendations of the Model
of the internet so that individuals, businesses and governments rarely worry about the internet collapsing.
Criminal Code Officers Committee of the Standing Committee of Attorneys-General, influenced the development of Australia’s Cybercrime Act 2001
#O NC L U S IO N
(Cth), discussed earlier in the chapter.
Law’s effectiveness in cyberspace has been limited because the internet is a global medium
l eg al l i nks
and laws are limited by national boundaries. The tension between global and local interests, as well For further information about the Convention on Cybercrime, see www.coe.int/t/DGHL/cooperation/ economiccrime/cybercrime/ default_en.asp
as the cost of enforcing law with respect to the internet, has been a hindrance. In addition, law enforcement is tied to its area of jurisdiction, and the anonymity possible on the internet has made it difficult to trace offenders. Often, law must use a case-by-case approach, and prioritise cases according to which have the most reasonable prospect of enforcement.
)#!..SPOTENTIAL
188
When drafting legislation and agreements, both
One organisation that has enormous potential to
national governments and international organi-
be the ultimate global authority on the internet is
sations must ensure that the new law or reform
the Internet Corporation for Assigned Names and
can accommodate the rapid pace of technological
Numbers, or ICANN. This non-profit organisation
change, so that it is not made redundant or
is responsible for the domain name system (DNS).
irrelevant in a short time. They must also avoid
The founders of ICANN intended it to be the
the unintended consequences of well-intentioned
ultimate authority for the internet. However, the US
laws, balancing the protection of people directly or
government has had responsibility for its oversight,
indirectly affected by activities in cyberspace with
under a memorandum of understanding between
individual rights and community good.
ICANN and the US Department of Commerce, from
Given the international nature of cyberspace,
1998 to 2009. Representatives of other countries
its effective regulation will require, at the very
and other observers have questioned why the US
least, cooperation among nation-states. A binding
should have primary authority, and argued that it
and enforceable international regime will require
should be more independent and therefore more
considerable effort, and quite possibly a voluntary
international.
relinquishment of some national authority.
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Two distinct features of cyberspace that will influence laws relating to it are its: A security and predictability B anonymity and global character C political progressivism and educational value D democracy and communitarianism It can be concluded from the US Supreme Court decision in Reno v ACLU that: A Cyberspace requires some degree of government control. B Laws that attempt to regulate internet content may restrict free speech. C Online communication is more like a conference call than a private conversation. D All of the above The international organisation concerned with copyright law is: A ICANN B IANA C the UN D WIPO
The ind iv id ual and th e law
C hap te r s u m m a ry M ul t i p l e- c h oi c e q ues ti ons
s Cyberspace is an area in which the law is playing an increasing but controversial role. The characteristics of cyberspace include global coverage, easy anonymity for users, and the facilitation of creative activity. s Crimes specific to cyberspace include hacking and spam. s Fraud and violations of intellectual property rights are not specific to cyberspace, but they take on a distinctive character in that context. s Privacy and safety issues are of concern to many internet users, and particularly to parents of young users.
s The ALRC has recommended the development of a statutory tort of breach of privacy, and other reforms to take account of new technology. s Efforts to protect children from indecent or inappropriate material on the internet can conflict with the protection of individual rights to free expression. Combating serious criminal activity that makes use of the internet faces similar challenges, as well as the difficulty of enforcement. s Philosophical approaches to rights in cyberspace fall into two general camps: laissez-faire and interventionist. s While greater government control of cyberspace has clear benefits with respect to fighting crime, democratic governments must ensure that individuals’ civil rights are not violated. s International regulation of cyberspace is in its infancy.
Spam is: A the unauthorised duplication of goods protected by intellectual property law. B an unsolicited commercial electronic message. C an attempt to gain money through some sort of deception. D the intentional misrepresentation or concealment of information in order to deceive or mislead. A digital tattoo is: A a unique type of computer identifier used by some European countries. B a software program unique to the individual, which is stored online somewhere in cyberspace. C a type of internet scam. D information placed on the internet that is no longer wanted but that cannot be easily removed.
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C hap ter s u m m a ry ta s k s Top i c revi ew 190
Identify the various sources of law in cyberspace. Give examples. Describe the various types of criminal offences that occur in cyberspace. List the various types of intellectual property and explain how cyberspace may pose unique problems for the law in relation to them. Describe the various ways in which privacy can be violated in cyberspace. Explain how privacy is protected in Australia. List some of the problems arising from the free and unrestricted transmission of information in cyberspace.
List some of the problems arising from government efforts to prevent the transmission of some types of information in cyberspace. Explain why government control of cyberspace is constantly challenged. List the international organisations that have some authority for the regulation of cyberspace, and describe the function and jurisdiction of each. Outline the reasons why law is not always effective in cyberspace.
EX T EN DED R ES PON S E
Evaluate the role of case law in shaping the regulation of the internet. Refer to two prominent cases in your answer. Describe the features of the internet and explain the implications of these features on lawmaking in cyberspace. ‘In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost.’ Assess the implications of this aspect of John Perry Barlow’s 1992 vision of cyberspace. Evaluate the usefulness of international treaties in governing cyberspace. Assess the effectiveness of government efforts to fight crime in cyberspace.
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Law in practice Law in practice 30% of course time
L aw in p rac tic e
PART III
AREA 1: GROUPS OR INDIVIDUALS SUFFERING DISADVANTAGE
Children and young people Women
AREA 2: EVENTS WHICH HIGHLIGHT LEGAL ISSUES
The Bali bombings The Port Arthur Massacre
AREA 3: INDIVIDUALS OR GROUPS IN CONFLICT WITH THE STATE
Mohamed Haneef Outlaw motorcycle gangs (OMCGs)
AREA 4: CRIMINAL OR CIVIL CASES THAT RAISE ISSUES OF INTEREST TO STUDENTS
File sharing and digital copyright Drug testing
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A r e a 1: G r o u p s o r i n d i v i d u a l s s u f fe r i n g d i s a d va nt a g e
CHAPTER 9
ke y t e r m s / vo c a b ul ar y
c hap ter ob j e cti ve s
Children and young people
192
In this chapter, students will: s explore legal concepts and terminology relating to children and young people s investigate the main features of the Australian and international legal systems in relation to children and young people s analyse the legal system’s effectiveness in delivering justice and addressing issues in society relating to children and young people s investigate the place of the law in encouraging cooperation and resolving conflict with regard to children and young people
adoption order cautions children doli incapax foundling guarantor indictable offence juvenile prohibited person public space sanction summary offences torts warnings
s investigate the role of the law in addressing and responding to change with respect to children and young people s find and use legal information from a range of sources s develop the ability effectively to communicate legal information and issues.
working with children check young person youth justice conferences
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L aw in p rac tic e
rel ev ant l aw IM PORTA N T L EGIS L AT ION
Family Law Act 1975 (Cth) Education Act 1990 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Australian Citizenship Act 2007 (Cth) Adoption Act 2000 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Young Offenders Act 1997 (NSW) Children (Protection and Parental Responsibility) Act 1997 (NSW) Commission for Children and Young People Act 1998 (NSW) Children’s Court Act 1987 (NSW) Anti-Discrimination Act 1977 (NSW) SIGNIFIC AN T C AS ES
Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All ER 402 Department of Health and Community Services (NT) v JWB (‘Marion’s case’) [1992] HCA 15 Re W (A Minor) [1993] Fam 64
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Int roduc t ion children generally persons aged 15 years and younger, depending on the legal context
Children and young people represent the future
This chapter will examine the disadvantages
of society. The respect we afford them and the
that children and young people encounter, the
way in which we support and nurture their social,
legal and non-legal means adopted to address
emotional and cognitive development are crucial
those disadvantages, and the limitations of these
young people in NSW, persons aged 16–18 years
to the maintenance of a fair and just community.
means.
# H I L D R E N YOU N G P E O P L E A N DT HELAW (OWTHELAW !HISTORYOFTHESTATUS DEFINES@CHILDHOOD OFCHILDRENANDYOUNG AND@YOUNG PEOPLE PERSON Historically, children had no legal rights until they Traditionally, the legal age of adult-
reached adulthood. It was not until the late 19th
hood was 21. In the past 20 to 30
century that concern about the working conditions
years, most jurisdictions have lowered
of children, and the broader effects that child
this age to 18.
labour had on the quality of many children’s lives,
Article 1 of the Convention on the
Figure 9.1 Under the law, a person aged 15 or younger is generally regarded as a ‘child’. In NSW, a person between the ages of 16 and 18 is considered a ‘young person’.
194
set in motion significant changes.
Rights of the Child (CROC) states that
Throughout the 19th century, children in poorer
anyone under the age of 18 is a child
families were constantly threatened by the spread
unless the national law specifies an
of disease. They lived in dirty, overcrowded housing
earlier age.
with very poor sanitation. It is estimated that
The Children and Young Persons
about half the funerals in London were for children
(Care and Protection) Act 1998 (NSW)
under the age of ten, many of whom had died from
defines a ‘young person’ as someone
preventable diseases. The infant mortality rate
aged between 16 and 18.
was as high as 50 per cent for children in their first
These definitions are important
year. Many children also experienced violence on
because laws treat children and young
a regular basis. For many, poverty and crime were
people differently from adults. These
significant influences in their formative years.
laws are intended to:
Joining a gang, crime and prostitution were ways
s prevent them from being exploited
of surviving until adulthood.
s protect them from the conse-
Children committing criminal acts were treated
quences of making uninformed
in the same way as adult offenders. The concept
decisions
of an age before which a person could not be held
s protect others from being dis-
criminally responsible – doli incapax – did not
advantaged by dealing with a
exist, and children as young as seven or eight were
person who is a minor.
convicted of serious criminal offences.
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L aw in p rac tic e Figure 9.2 The industrial era introduced young children to long work hours and dangerous machinery.
Children were forced to work from a young age.
churches were heavily involved in education,
The beginning of the industrial era saw the begin-
with many Anglican, Catholic and Jewish families
ning of child labour in factories, where they worked
preferring to send their children to a religious
long hours, usually with dangerous machinery, for
school. In Australia, the Church of England ini-
very low pay. They also experienced work-related
tially assumed responsibility for the education
diseases due to hard physical labour or from work-
of colonists. Following disagreements between
ing with industrial chemicals, unprotected.
Anglicans, Presbyterians and Catholics as to which
The concept of public education did not exist.
religion had authority for this task, each colony
The education children received depended on the
between 1872 and 1895 passed Education Acts
wealth of their family. Private tutors or governesses
making primary education a state responsibility
who taught the children at home were one option
and stipulating that it would be ‘free, compulsory
for the rich, or boys could be sent to exclusive
and secular’. Many parents of limited economic
boarding schools.
means needed their children to be working, and
In 1870, the Elementary Education Act was
it wasn’t until the introduction of a minimum
passed in England, which introduced compulsory
working age that children began to attend school
universal education for children aged 5–13. The
regularly.
doli incapax a Latin term meaning ‘incapable of wrong’; the presumption that a child under 10 years of age cannot be held legally responsible for his or her actions and cannot be guilty of a criminal or civil offence
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By the end of the 19th century, governments,
have one’s own name and identity, to be raised by
religious institutions and charities had become
one’s family and to have a relationship with both
aware that children required specific legislation to
parents, even if the parents are separated.
protect them from violence and abuse, and to give
CROC is the most widely ratified human rights
them greater opportunities to develop socially and
treaty, with more than 193 countries having
emotionally.
ratified it. The exceptions are the United States
2ECOGNITIONOFCHILDRENSRIGHTS
on the Rights of the Child, which assesses state
Two
that
parties’ performance, reports to the UN General
advanced the rights of children and young people
Assembly, and makes recommendations. The
internationally and in common law countries were
committee does not have the power to hear
the opening for signature of the United Nations
individual complaints of violations of children’s
Convention on the Rights of the Child (CROC), and
rights.
and Somalia. It is monitored by the UN Committee significant
events
in
the
1980s
the Gillick case in England. TH E G I L L I C K C A SE C ON VEN T ION ON T H E RI G H TS O F TH E
Gillick v West Norfolk and Wisbech Health Authority
C H IL D
[1985] 3 All ER 402 was a House of Lords decision.
The UN Convention on the Rights of the Child (1989)
The Department of Health and Social Security
sets out a comprehensive set of rights for all
(DHSS) had distributed a flyer advising doctors
children and young people. It covers civil, political,
that they could lawfully provide contraception
economic, social and cultural rights, and requires
and advice to persons under 16 years old without
that all state parties act in the best interests of
their parents’ consent. The local health authority
the child. The Family Law Act 1975 (Cth) and other
refused to promise Victoria Gillick, a mother of
Australian legislation endeavour to reflect that
five daughters, that they would not provide advice
objective. The basic rights of a child, as set out in
and contraception to her daughters without her
Articles 1–40 of CROC, include the right to life, to
consent. Gillick brought an action against the health authority and the DHSS, based on her belief that a child under 16 was too young to make such
2%6)%7
2 %3 %!2 #(
a decision without parental consent. Justice Woolf
1 What challenges did children
Go to the Office of the High
in the first instance held that Mrs Gillick was not
and young people experience
Commissioner for Human
entitled to declarations prohibiting the doctors
in the 19th century in
Rights at www.unhchr.ch/html/
at the clinic from prescribing contraceptives or
England? Give examples.
menu3/b/k2crc.htm.
providing advice to her daughters. The Court
1 Write a one-page summary
of Appeal allowed Mrs Gillick’s appeal, and the
2 What is meant by doli incapax? 3 Outline how the law defines
of CROC. 2 What is the significance
behalf of the health authority, took the matter to the
children and young people.
of CROC? Does it bear
House of Lords, which affirmed the appeal on the
Use examples.
any relation to the Gillick
basis that a 16-year-old was capable of consent in
case? Give reasons for your
medical matters, provided that she ‘has sufficient
answers.
understanding and intelligence to understand fully
4 Read about the facts of the Gillick case at http://news.
196
Department of Health and Social Security, on
bbc.co.uk/onthisday/hi/
what is proposed’. In other words, children have
dates/stories/july/26/ and
the right and the ability to make decisions to affect
comment on the implication
their lives, and they can do so competently as
of the decision by the House
long as they understand the implications of their
of Lords.
decisions.
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#IVILLAWINRELATION TOCHILDRENANDYOUNG PEOPLE The Family Law Act 1975 (Cth) governs disputes between married and de facto couples, including
L aw in p rac tic e
disputes relating to children. The ‘paramount consideration’ for orders relating to children made under this Act must be the children’s best interests. Many other aspects of the law applying to children come under state jurisdiction. In New South Wales, these include the following matters.
2EGISTRATIONANDCITIZENSHIP Parents have the responsibility to register the birth of their child under the Births, Deaths and Marriages Registration Act 1995 (NSW). The parents have seven days after the birth to give notice of the birth, and 60 days to complete the registration process.
Figure 9.3 A child with a member of his adopting family
This puts the existence of the child on the public If a child is a foundling, the person who
the father or mother in most cases, and therefore
has been granted guardianship of the child is
affords to the child all legal rights and protections.
responsible for having the child’s birth registered.
The parent or parents also assume responsibilities
An adoption order made under the Adoption Act
under the law for the child’s welfare. If a child is
2000 (NSW) must also be registered (Births, Deaths
stillborn, the state Registrar of Births, Deaths and
and Marriages Act 1995 (NSW) s 23). A child’s name
Marriages must be notified within 48 hours.
may be changed, and generally the child must
l eg a l i nf o
record and gives the child a legal name, that of
The Australian Citizenship Acts#TH AND The Australian Citizenship Act 2007
is an Australian citizen. Children born
(Cth) replaced the Australian Citizen-
overseas to a parent who is an
ship Act 1948 (Cth). It sets out how a
Australian citizen may apply for
person becomes an Australian citizen,
registration as an Australian citizen by
the circumstances in which a person
descent, if they meet certain criteria.
may cease to be a citizen, and some
A child who is a perma nent resident
other matters related to citizenship.
and who has been legally adopted also
Under the Act, any child born in
automatic ally
Australia is automatically an Austra-
citizenship.
acquires
foundling a deserted infant whose parents’ identity is unknown adoption order a court order that establishes a new legal relationship between potential adoptive parents and a child eligible for adoption. It also severs the legal relationship that existed between the adoptive child and his or her natural or legally recognised parents or guardians prior to the adoption process.
Australian
lian citizen if at least one of the parents
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consent to this change (Adoption Act 2000 (NSW)
s Children living in less disadvantaged areas were
s 101; Births, Deaths and Marriages Act 1995 (NSW)
more likely to work, and work decreased with
ss 28, 29).
increased social disadvantage. Children with greater household responsibilities had fewer
%DUCATION
opportunities to work.
Children have the right to be educated, and it
s Young workers were paid less than mature people
is compulsory for children aged 6–15 to attend
doing the same jobs, possibly because they often
school under the Education Act 1990 (NSW). Under
work on an informal or casual basis and their
s 22 of this Act, parents must send their children
work is outside regulatory requirements.
to a government school or a nongovernment school registered
s High levels of harassment and injury were reported by the children surveyed.
2%3 % ! 2#(
with the NSW Board of Studies,
Go to www.youngpeopleatwork.
or
nsw.gov.au/ and www.lawstuff.
schooling. Section 4 of the Act
In Department of Health and Community Services
org.au to research other aspects
asserts that it is the duty of the
(NT) v JWB (‘Marion’s case’) [1992] HCA 15, the
of work for children and young
state to ensure that every child
High Court of Australia followed the decision in
people. Summarise your findings in
receives an education of the
the Gillick case, holding that once a person has
a few paragraphs.
highest quality.
sufficient maturity and intelligence to understand
register
them
for
home
-EDICALTREATMENT
what is proposed, she or he is capable of consenting
7ORK
to medical treatment.
Generally it is acknowledged that it is in the best
This common law test is subject to s 49 of the
interests of children that they remain in school
Minors (Property and Contracts) Act 1970 (NSW),
and receive a formal primary and secondary
which protects a medical practitioner from liability
education. According to the Office of Industrial
in tort for treating a young person, if the young
Relations in NSW, there is no minimum legal age
person has given consent to the medical or dental
limit for young workers. If, however, they are
treatment and is aged 14 or over.
under 15, they must receive authorisation from
Parents have the responsibility to seek proper
the NSW Department of Education and Training
medical care for their children, even if they have
to leave school. Young people in the workplace are
religious objections. The Children and Young
covered by all of the relevant workplace and safety
Persons (Care and Protection) Act 1998 (NSW) s 174
legislation for workers in NSW.
authorises a medical or dental practitioner to carry
The NSW Commission for Children and Young surveyed 10 999 children and young people in Years 7–10 living in NSW about their working experiences. The report gave an interesting profile of young workers throughout the state. Although the survey found that the majority of children could list both positive and negative
le g al li nk s
People, in its 2005 report Children at Work,
To read the recommendations of the NSW Commission for Children and Young People responding to the issues in the Children at Work report, go to: www.kids.nsw.gov.
aspects of working, and that they especially
au/uploads/documents/
liked getting paid and gaining experience and
childwork_recs.pdf
responsibility, the report also showed some trends of concern:
198
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guardian who acts as a guarantor to ensure that
person without parental consent
the contractual obligations are fulfilled.
As legislation does not deal with a young
The Supreme Court of NSW can confer the
person’s right to refuse medical treatment, this
capacity to enter a legal contract upon a minor
issue is governed by the common law. If a child
(s 26).
under 16 refuses medical treatment, parents have a right to insist that it be performed, despite the
Torts
Gillick test of competency (Re W (A Minor) [1993]
There is no age restriction on taking legal action
Fam 64). A court can override a young person’s
for a civil wrong. If a child is injured as a result
refusal of medical treatment if the refusal is not in
of someone else’s negligence, is a victim of
his or her best interests.
defamation, or suffers loss or damage as a result of some other wrongful behaviour, he or she is
$ISCRIMINATION
entitled to sue the wrongdoer.
Children and young people are protected from dis-
A child is also personally responsible for his or
crimination on the basis of age by Part 4G of the
her own wrongful acts. The general rule is that
Anti-Discrimination Act 1977 (NSW). This Act also
parents are not liable for torts
outlaws discrimination on the basis of sex, race,
committed by their children.
guarantor a person who gives a formal promise that someone else’s contract will be fulfilled, often backed by some form of asset that will stand as collateral to secure the promise torts civil wrongs involving breach of a duty; torts include negligence, defamation, nuisance, and trespass to the person, goods or land
L aw in p rac tic e
out emergency treatment on a child or young
2 %6 ) %7
sexuality and other characteristics, and applies to discrimination in work, education and the pro-
,EAVINGHOME
vision of goods and services. There are a number
Young people do not have the
of exceptions, however, relating to superannuation,
right to leave their parents’ home
insurance, credit applications, vehicle safety, and
before the age of 18. However,
legal rights and responsibilities
sport, and the Act does not affect the operation of
the law would not normally force
in each of the following areas,
laws relating to the legal capacity of children or of
young people over the age of
along with the statutory or
laws specifically designed to protect them.
16 to stay at home against their
common law source of each of
wishes. The following factors
the rights and obligations:
Contracts
would be considered: maturity,
a education
Under the Minors (Property and Contracts) Act 1970
accommodation,
b work
(NSW), people under 18 are generally not bound
environment, and the parents’
c medical treatment
by a contract, lease or other transaction (ss 8, 17).
attitude.
d entering a contract
safe
1 How does a child become an
living
Australian citizen? 2 List a child’s or young person’s
The courts will not enforce such contracts, even if they do exist. The exception to this, contained in s 19 of the Act, is a situation where a young person enters an
Refer to Chapter 9 on the Student CD
agreement that is for his or her own benefit and
for information relating to:
is a necessity, such as accommodation or food.
s family matters, including inheritance
For example, a young person who leaves home
and parentage
at 16 to take an apprenticeship and has to sign a
s care and control
rental lease for accommodation, or needs to buy a
s Children and Young Persons
car on finance for transport, will be bound by the
(Care and Protection) Act
contract.
1998 (NSW)
Some minors may be able to enter into certain contractual arrangements if they have a parent or
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sanctions penalties imposed on those who break the law, usually in the form of a fine or punishment
#RIMINALLAWINRELATION TOCHILDRENANDYOUNG PEOPLE
juvenile a child or young person, generally under 18 years of age, although this may vary depending on the context
youth justice conferences a measure to divert young offenders from the court system through a conference that addresses the offender’s behaviour in a more holistic manner
those indictable offences that can be dealt with summarily. The principles of the Act are that: s the least restrictive sanction should be applied where possible s children should be informed of their right to seek legal advice s criminal proceedings are not to be started if there is an appropriate alternative for dealing with a matter. Under the Act, children and young offenders who have committed an offence covered in the Act may proceed through a three-tiered system of diversionary processes, comprising warnings, cautions and youth justice conferences. A warning can be given by a police officer, either at the place where the child was found offending or anywhere else. The child must be told Figure 9.4 Between the ages of 10 and 14 a child may be found guilty of a criminal offence.
of the nature, purpose and effect of the warning. No conditions can be attached to the warning, and no additional sanctions imposed. The police officer must ensure that the child understands the
Section 5 of the Children (Criminal Proceedings)
warning, and must notify the parents.
Act 1987 (NSW) clearly states the principle of doli
A caution is given by a police officer or a
incapax: ‘It shall be conclusively presumed that no
specialist youth officer when the child admits
child who is under the age of 10 years can be guilty
the offence. It is used where the offence is more
of an offence.’ This is the same in all jurisdictions
serious. The officer must determine whether a
in Australia.
matter is appropriately dealt with by caution by
Between the ages of 10 and 14 a child may
considering the seriousness of the offence, the
be found guilty of a criminal offence, but the
degree of violence involved and harm caused to
prosecution must rebut the notion of doli incapax
the victim, and the number and nature of any
and show that the child, at the time of the alleged
offences the child has committed. He or she must
offence, could distinguish between right and
ensure that the child understands the nature,
wrong. From the ages of 14 to 17, children and
purpose and effect of the caution, and that he or
young people are held fully responsible for their
she is entitled to obtain legal advice and to choose
actions. However, they are subject to a different
to have a court deal with the matter. A court may
range of criminal sanctions than adults who have
also give a caution. Before a caution is given, the
committed the same offences. Detention is a last
offender must be given a written notice of it.
resort for a juvenile offender in all states and territories.
200
of providing diversionary measures for young The Act only applies to summary offences and to
indictable offences serious criminal offences that require an indictment (a formal, written charge) and a preliminary hearing; they are typically tried before a judge and jury and are subject to a greater penalty
cautions formal notices given to young offenders where the offence is more serious than one appropriately dealt with by a warning
The Young Offenders Act 1997 (NSW) has the aim offenders as alternatives to court appearances.
summary offences criminal offences that can be dealt with by a single judge without a jury and do not require a preliminary hearing
warnings formal notices given to a young offender, usually for a first minor offence
The Young Offenders Act 1997 .37
A youth justice conference may be used for offences of the same gravity as those for which a
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caution is imposed, or one that is more serious, such as those involving harm to a victim. Conferences are designed to encourage the offender to take responsibility for his or her own actions, to provide support services, to promote the rights of victims,
L aw in p rac tic e
and to involve families and others in the justice
legal links
process.
Go to www.policensw.com/info/ gen/y2.html for more information on warnings, cautions and youth justice conferences.
Refer to Chapter 9 on the Student CD for information relating to: s Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) s Children (Protection and Parental Responsibility) Act 1997 (NSW)
Figure 9.5 The Young Offenders Act aims to divert young offenders from the court system.
-ECHANISMSFORPROTECTINGTHE RIGHTSOFCHILDRENANDYOUNGPEOPLE ,EGALRESPONSES
monitors and reports on the extent to which that nation is complying with its international
4HEROLEOFTHE5NITED.ATIONS
obligations.
The Convention on the Rights of the Child (CROC)
The Committee on the Rights of the Child meets
has been important in putting the rights of children
to examine reports from ratifying countries. The
on the global agenda. Ratification usually means a
18 committee members are independent experts
government passing domestic laws to give effect
in the field of human rights, who are elected by the
to some or all of the principles of an international
governments of ratifying countries. As mentioned
treaty. Once a nation-state has signed and ratified
above, the committee has no coercive power.
a treaty, the United Nations committee structure
Australia has a responsibility under the convention
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Figure 9.6 Child slavery and the use of children and young people as soldiers are continuing human rights challenges, despite international instruments such as CROC.
‘working with children check’ a check by the NSW Commission for Children and Young People on the appropriateness of a person in NSW to work in child-related employment
to report to the committee on the steps that it has
TH E NSW C O M M I SSI O N FO R C H ILD R E N
taken to give full effect to the contained rights.
A ND YO U NG PEO P L E
numerous Acts that protect children and young
The commission implements and monitors
prohibited person a person prohibited from working in childrelated employment because of a conviction of a serious sex offence, murder of a child, or an offence involving violence toward a child
people by restricting their activities and by placing
the ‘working with children check’, the man-
responsibilities on adults to ensure the welfare
datory employment screening by employers of
of children and young people. Certain rights of
job applicants in child-related employment, as
children have also been enshrined in legislation,
outlined in the Children and Young Persons (Care
which in turn has created legal institutions and
and Protection) Act 1998 (NSW). The Commission
processes that promote and protect these rights.
for Children and Young People Act 1998 (NSW)
The courts have also played a role, through cases
contains offences with penalties for employers
The NSW Commission for Children and Young
4HEROLEOFPARLIAMENTANDTHE courts
People is a statutory body set up in 1998 to promote
Federal and state parliaments have passed
needs of children and young people.
respect for and understanding of the interests and
that have affirmed the current
who employ a person in child-related employment
2%6)%7
law or changed the law through
without sufficient scrutiny of the person, or who
1 Outline the main role of the
reinterpretation.
knowingly employ a prohibited person in child-
NSW Commission for Children and Young People. 2 Describe what is meant by the ‘working with children check’.
202
Some of the legal institutions
related employment. These requirements on
in NSW that have been set up
employers reduce the likelihood of prohibited
to protect children and young
persons having contact with children in the course
people are as follows.
of their work.
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individuals’ complaints about the administration of
Across NSW, there are 13 children’s magistrates
government agencies or the agencies’ compliance
sitting in seven specialist Children’s Courts. Five
with specific legislation. Traditionally, the office
of these courts are in metropolitan areas. There
is seen as representing the people’s interests,
are also five children’s registrars appointed
and its credibility comes from its reputation for
under the Children’s Court Act 1987 (NSW) to
impartiality, independence from government and
assist in the administration of matters before
confidentiality.
the court. The court has a dual role: determining
There have been calls for a specialist ‘children’s
matters of juvenile offenders that appear before
ombudsman’ that can take a more targeted
it, and also determining care and protection
approach to issues facing children and young people
matters concerning children referred to it by the
in their dealings with government agencies.
Department of Community Services (DOCS).
L aw in p rac tic e
CHILD REN’ S C OURT S
Another important role performed by the
Under the Children and Young Persons (Care
ombudsman’s office is investigating and reporting
and Protection) Act 1998 (NSW) ss 71 and 72, the
on ‘reviewable deaths’ of children in NSW. A
court may make care orders if it is satisfied on the
death is reviewable if the child or a sibling has
balance of probabilities that the child or young
been reported to DOCS at any time and for any
person is in need of care or protection.
matter in the three years prior to the child’s death. With the objective of preventing harm, abuse
THE D EPA RT MEN T OF C OMMUN IT Y
and neglect of children, the ombudsman’s office
SERVICES N S W ( DOC S )
assesses whether the child protection system
The Department of Community Services (DOCS) is
could have prevented some of these deaths. In
responsible for the care and protection of children
2007, 601 children died in NSW, and 156 of those
in NSW. It carries out this role in cooperation with
deaths (25.9%) were reviewable.
non-government organisations and government agencies. Its activities include the provision of
A DM I NI STRATI V E DEC I SI O NS TRI B U NA L
accommodation and support for children and
As discussed in Chapter 7, the Administrative Deci-
young people who need to live away from their
sions Tribunal reviews administrative decisions of
families, the regulation of child care through
NSW government bodies. Its Community Services
licensing, and the funding and regulation of
Division deals with applications for review of
adoption services.
decisions made by DOCS. The division also hears applications for declarations that a person seeking
LEGAL AID
to apply for a job working with children is not
Legal Aid NSW provides a range of services to
a prohibited person under the Commission for
children and young people in NSW. It represents
Children and Young People Act 1998 (NSW).
children and young people in a variety of matters, from welfare proceedings in the Children’s Court
C O A G NATI O NA L FRA M E WO RK
to family law matters in the Family Court. Its
In 2009 the Council of Australian Governments
legal representatives will also appear for children
(COAG), an intergovernmental forum made up of
and young people facing criminal charges in the
the federal and all state and territory governments,
Children’s Court.
published its National Framework for Protecting Australia’s Children 2009–2020. This initiative
THE NSW OMBUDS MAN
has the aim of fighting child abuse and neglect
The main role of the NSW Ombudsman is to act
by preventing it in the first place – that is, by
as an independent review body that deals with
protecting the safety and well-being of children.
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.ON LEGALRESPONSES As children and young people cannot vote, it is difficult at times for their voices to be heard. There are some very effective non-legal mechanisms that keep the issues of children and young people on the political agenda. They may be the first point of call, and can either provide valuable information about a person’s rights or refer the person on to a relevant source.
4RADEUNIONS Trade unions are organisations of workers who act together to maintain their rights to good working conditions. The Australian Council of Trade Unions (ACTU) provides information about pay and conditions, health and safety issues, apprenticeships and training, and negotiating employment contracts, for young people entering the workforce for the first time.
+IDS(ELPLINE The Kids Helpline (www.kidshelp.com.au or 1800 551 800) is just one of many organisations from which children and young people in crisis can seek advice. It offers 24-hour free telephone and online counselling and referral about issues including family relationships, child abuse, mental health, bullying, drugs and alcohol, eating and weight issues, as well as specific issues faced by people Figure 9.7 The ACTU provides information for children and young people entering the workforce.
from Indigenous, non-English-speaking or rural backgrounds.
le g al li nk s
3TOP#HILD!BUSE Stop Child Abuse is a service provided by the The Worksite for Schools Website at www.worksite.actu.asn.au provides fact sheets, case studies, job profiles and other information about work, specifically directed to young people.
Australian Childhood Foundation to educate the community about child abuse. It provides a directory of services in every state to provide help and support for people who have experienced child abuse, as well as parents and others who are concerned about their own situation or want to report child abuse. Its web address is www. stopchildabuse.com.au/
204
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2%6)%7
2 %3%!2 #(
1 Describe the role of the NSW Ombudsman
Use the following websites to research the roles of the
in protecting the rights of children and
institutions and organisations in protecting the interests of
young people.
children and young people. Prepare a fact sheet on two of
Decisions Tribunal can play in protecting the rights of children. 3 What are the strengths and weaknesses of non-legal mechanisms with respect to the rights of children?
your choosing. s Committee on the Rights of the Child:
L aw in p rac tic e
2 Outline the role the Administrative
www.unhchr.ch/tbs/doc.nsf s The NSW Commission for Children and Young People: www.kids.nsw.gov.au/ s The NSW Children’s Court: www.lawlink.nsw.gov.au/childrenscourt s The Department of Community Services (DOCS): www.community.nsw.gov.au/DOCS/HOMEPAGE/ pc=pc=HOME.HTML s Legal Aid NSW: www.legalaid.nsw.gov.au/asp/index.asp s The NSW Ombudsman: www.ombo.nsw.gov.au/ s The Australian Council of Trade Unions (ACTU): www.actu.asn.au/
2ESPONSIVENESSOFT HELAW As they grow through adolescence and into adult-
Seen and heard: Young people and the legal pro-
hood, young people are more likely to take risks. At
cess, a joint inquiry of the Human Rights and Equal
the same time there are adults in society who abuse
Opportunity Commission and the Australian Law
and exploit children and young people. This means
Reform Commission conducted in 1997, examined
that children and young people will sometimes be
the relationship of children and young people and
at risk of harm, or at risk of harming others.
the legal process. Seventy-eight per cent of the 843
It is in this light that the legislation and mecha-
children and young people surveyed said that the
nisms in place to ensure justice for children and
police rarely treated young people with sufficient
young people will be evaluated.
respect. It could be argued that children and young
#HILDRENANDYOUNG PEOPLEANDTHECRIMINAL JUSTICESYSTEM
people on the whole do not have a good relationship with the police. Young people are frequently targeted for police
If children and young people come into contact
intervention – for lacking ‘respect’, for being
with the criminal justice system, it is usually
‘rowdy’, for being part of the ‘rave culture’, or
through interaction with a police officer when
simply for being young and out in public.
being arrested or questioned about some matter. This experience can influence their attitude to authority and to the wider community in general.
‘Young People and Public Space’ conference workshop presented by the Youth Justice Coalition and Youth Action and Policy Association, 2002
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The Seen and heard inquiry also examined
!RRESTANDPOLICEINTERVIEW
how policing could become more consistent with
In some jurisdictions it is alleged that police rely
CROC provisions and recommended that national
heavily on arrest to gather evidence or to further
standards should be implemented via legislation
the interrogation of suspects. In other words,
or policy in certain areas of concern. Some of the
arrest can be used as a method of investigation.
main areas are outlined below.
This is especially so for Indigenous youth. Article 37(b) of CROC states that arrest should be a ‘last resort’, not a routine practice, as it can be a very negative experience for children and
Refer to Chapter 9 on the Student CD
young people. The Seen and heard report also
for information relating to young people
recommended that for children at risk, welfare
and public space.
and health services may be the more appropriate agencies to deal with the situation. This is not to deny that arrest is appropriate when it is necessary for a police officer to protect the community. All suspects have the right to contact a lawyer and to have him or her present during questioning, as long as this does not interfere with the police investigation. Persons under 18 can contact the Legal Aid Youth Hotline if they have been arrested and need legal advice. However, people do not always exercise this opportunity because they are not aware of their rights, sometimes exacerbated by language difficulties, cultural differences or age. The Australian Law Reform Commission and others have recommended greater efforts by police to inform accused persons of their rights in terms that they can understand and act on.
3ENTENCINGOFYOUNGOFFENDERS Another area of concern at the time of the Seen and heard report was the sentencing of juveniles. Children and young people, more than any other offenders, have the best chance of rehabilitation and reintegration into society. As such, the sentence that offenders receive should take into account the age of the offender and the circumstances under which the offence was committed. The report noted that research has indicated that detention and other harsh sentencing options are generally ineffective as deterrents to reoffending. Figure 9.8 Detention and other harsh sentencing options are reported as being ineffective deterrants to reoffending.
206
Most jurisdictions do this. In New South Wales, the courts follow guidelines under the Children
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2/9/09 8:00:50 PM
(Criminal Proceedings) Act 1987 (NSW) which give special consideration to juvenile offenders.
Refer to Chapter 9 on the Student CD
However, the report suggested that there was
for information relating to:
room for improvement in this area and that ‘[m]
s Care and protection of children and
homelessness, family circumstances … and so on in determining sentences for children’ and that
young people s Children and young people in the workplace
L aw in p rac tic e
ore attention is needed to social factors such as
‘[s]entences should take into account the special health and other requirements of children and young people’.
)NTERNATIONALISSUES
9OUTHCONFERENCING
Children around the world are exploited and
While youth conferencing generally deals with
abused where the laws of their countries fail to
matters that would be dealt with summarily, it can,
offer protection to them. There are approximately
under the Young Offenders Act 1997 (NSW), be
250 million child labourers worldwide. In 2007
used for some indictable offences such as robbery
it was estimated there were as many as 300 000
and aggravated break, enter and steal. One of the
children and young people involved in armed
criticisms of well-intentioned laws like the Young
conflict, with up to 100 000 of these believed to
Offenders Act is that they are not being used for a
be in Africa.
sufficiently wide range of offences, and therefore
In countries ravaged by war and famine, where
that some young offenders are missing out on the
family structures have been destroyed, children
benefits that conferencing offers.
lack the protection normally afforded to them with-
The Shopfront Youth Legal Centre, in its sub-
in the family. Very recently in Australia, children
mission in response to the NSW Law Reform
sat in immigration detention centres, having
Commission paper on sentencing young offenders
broken no laws, as a result of the previous federal
in 2003, argued that:
government’s punitive laws relating to asylum
Youth justice conferencing is suitable for a wide range of offences, even very serious ones. It is
seekers. In other countries minors are still being executed for the crimes they have committed.
not a ‘soft option’. Indeed, it could be said that conferencing works best in the case of relatively serious offences because the young offender is obliged to consider the consequences of his or her actions, in particular the harm caused to the victim. In most cases, conferencing is a more effective mechanism than court for achieving this.
A further criticism of the application of the provisions of the Young Offenders Act is that police discretion results in some matters that should be referred to a conference not being so referred. One way of ensuring that more matters are referred to conferencing would be to reduce police discretion by making some matters mandatory for referral.
Figure 9.9 Children gathering potatoes on a large farm in Maine, USA. Schools do not open until the potatoes are harvested.
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Figure 9.10 Many products sold throughout the world are still made using forced child labour.
208
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cess for scrutiny of draft legislation for compliance
As discussed earlier in this chapter, the Committee
CROC include:
on the Rights of the Child examines the reports of
s The defence of ‘lawful correction’ is still available
parties to CROC and their compliance with their
in all states and territories to parents who use
obligations under it. The committee can report
corporal punishment on their children, except
and publish adverse findings on countries that
in NSW, where it has been limited by legislation
have failed to enforce the rights of its children.
prohibiting force to the head or neck, and force
Sovereign nation-states can choose to ignore or
causing harm ‘likely to last for
comply with such findings.
more than a short period’.
with treaty principles should be a high priority. Other deficiencies in Australian law regarding
corporal punishment the physical punishment of people, especially of children, by hitting them public space areas set aside in which members of the community can associate and assemble
L aw in p rac tic e
!USTRALIASOBLIGATIONSUNDER THEConvention on the Rights of the Child
2 %3%! 2# ( Research an international
Australia has been a strong supporter of CROC
s There are laws under which
from the very outset, and has an extensive body of
police can deny children and
human rights issue regarding
federal and state law in place designed to protect
young people use of public
children and young people.
and promote the welfare of children and young
space by asking them to leave
Prepare a fact sheet outlining
people. At the same time, there are still areas
or removing them: for example
the issue. Issues could include
where Australia can do better.
Part 3, Division 2 of the Child-
child slavery, the use of
ren
children as soldiers in conflict
The Joint Standing Committee on Treaties was established to inquire into and report on matters
(Protection
and
Parental
Responsibility) Act 1997 (NSW).
or forced child labour. Use
arising from treaties, proposed treaty actions,
s Children and young people are
any questions relating to a treaty referred to it by
paid less for doing the same work
amnesty.org/library/Index/
either house of parliament or a minister, and other
as adults on junior rates of pay.
ENGACT500152004 and that
matters referred to it by the Minister for Foreign
s It is argued that the criminal age
website’s ‘search’ function to
Affairs. For example, in 1998 its Report 17 looked
of responsibility of 10 is too low.
the website http://www.
get started.
at domestic ramifications of ratification; federal, state and territory progress in complying with CROC; the adequacy of programs and services for children’s health, education and welfare; the
Refer to Chapter 9 on the Student CD
adequacy of legislation in addressing the needs of
for information relating to
children; and further action required. Nonetheless,
child executions.
some have argued that the development of a pro-
Co nc l u s io n The rights of children have come a long way.
There is still cause for great concern about the
Australian legislation has established processes
exploitation and abuse of children internationally.
and institutions to recognise and protect the
The force of international law relies on the domestic
important role that children and young people play
measures taken to implement the rights contained
in our society. It is accepted that these individuals
in treaties such as CROC, and the pressure brought
have special needs because of their age, and
to bear by the parties, not only by the treaty-based
that their physical, intellectual, emotional and
human rights committees.
social development depends on legal and social mechanisms to allow them to flourish.
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2/9/09 8:00:56 PM
C hap t e r s u m m a ry M u l t i p l e -c ho i ce q ues ti ons 210
s Historically, children had no legal rights. This began to change gradually in the 19th century, with the introduction of free compulsory education and laws limiting children’s labour. s The Convention on the Rights of the Child was an important development in promoting the rights of children and young people. It is the most signed of all international treaties. s The law generally defines a child as a person under the age of 16, and a young person as one aged 16 to 18. s The status and rights of children under the law are contained mainly in legislation in the areas of work, education, discrimination, medical treatment, and contracts. s All states in Australia have enacted care and protection legislation over the last 30 years. s Children and young people are given special consideration in respect to criminal law, which takes into account the age of the offender at the time of the offence.
Which of the following is a feature of doli incapax in NSW? A Children and young people are responsible for their crimes from the age of 14. B There are certain crimes for which children and young people are not responsible. C Children and young people under the age of 10 are not responsible for their crimes. D People with mental disabilities are not responsible for their crimes. Which of the following is the best definition for ‘young person’? A a person under the age of 16 B a person between the ages of 12 and 16 C a person aged between 16 and 18 D a person aged between 18 and 25 Which of the following is not a reason for the law to treat children and young people differently? A to prevent them from being exploited B to protect them from the consequences of making uninformed decisions C to give them the best chance of finding appropriate employment
s The Young Offenders Act 1997 (NSW) provides diversionary measures for young offenders who have committed summary offences and some indictable offences. s The United Nations Committee on the Rights of the Child oversees the implementation of the Convention on the Rights of the Child. s The NSW Commission for Children and Young People is an independent body that conducts research related to children and young people. It also conducts ‘working with children’ checks. s The Children’s Court has a dual role with respect to children and young people. It hears criminal matters relating to young offenders as well as care applications for children and young people considered to be at risk of harm. s The Department of Community Services (DOCS) investigates reports of children considered at risk of harm. s Non-legal mechanisms for protecting the rights of children and young people include counselling services and other community organisations.
D to protect others from being disadvantaged by dealing with a person who is a minor Which of the following statements best describes Australia’s obligations under the Convention on the Rights of the Child (CROC)? A Laws must be passed within Australia to implement all of the provisions of CROC. B Australia can pass whatever laws it chooses to, as it is a sovereign nation. C Australia can pass whatever laws it chooses to, as it is a sovereign nation, but it is obliged to pass laws to implement the provisions contained in CROC. D Australia will pass laws recommended by the United Nations General Assembly. Which of the following bodies monitors the mandatory screening of applicants for jobs in child care? A Australian Council of Trade Unions B Department of Community Services NSW C NSW Commission for Children and Young People D Committee on the Rights of the Child
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L aw in p rac tic e
C hap t e r s u m m a ry ta s k s Top i c revi ew
Outline what changed in the treatment of children and young people by the end of the 19th century. Explain why this occurred. In three paragraphs, define child abuse and explain some of the issues in relation to it. Provide examples of contexts where the criminal justice system treats children and young people differently from adults. Explain how the Young Offenders Act 1997 (NSW) is unique.
Comment on the extent to which the United Nations can regulate the implementation of the Convention on the Rights of the Child throughout Australia and the rest of the world. Outline the roles of the NSW Commission for Children and Young People. What challenges might confront DOCS in performing its role effectively? Identify at least two non-legal mechanisms that promote the rights of children and young people.
EX T EN DED R ES PON S E
Critically evaluate how the legal system responds to the issue of juvenile justice. Refer to strategies for crime prevention, issues surrounding arrest and detention, diversionary schemes and court proceedings for young people.
Marking criteria for the extended response question can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your response.
Cha pter 9 – Children a nd young peopl e
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A r e a 1: G r o u p s o r i n d i v i d u a l s s u f fe r i n g d i s a d va nt a g e
CHAPTER 10
k e y t er m s/ v oc ab u l a r y
c hap ter ob j e cti ve s
Women
212
In this chapter, students will: s explore legal concepts and terminology with respect to women s investigate the main features of the Australian and international legal systems with respect to women s analyse the effectiveness of the legal system to deliver justice and adequately address issues in society relating to women s investigate the place of the law in encouraging cooperation and resolving conflict with regard to women and the law s investigate the role of the law in addressing and responding to change with respect to women
s find and use legal information from a range of sources s develop the ability effectively to communicate legal information and issues
direct discrimination entered into force feminism gender segregation glass ceiling indirect discrimination nation-state opened for signature optional protocol poverty line reservation sexual harassment
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L aw in p rac tic e
rel ev ant l aw IM PORTA N T L EGIS L AT ION
Family Law Act 1975 (Cth) Anti-Discrimination Act 1977 (NSW) Sex Discrimination Act 1984 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth) Equal Opportunity for Women in the Workplace Act 1999 (Cth) Women’s Legal Status Act 1918 (NSW) SIGNIFIC AN T C AS ES
O’Callaghan v Loder [1984] EOC 92-023
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Int roduc t ion For centuries, women have campaigned for change
men in all facets of society. Gender should not be a
in order to have their voices heard. Throughout
factor in determining the worth of an individual’s
history men have held most of the political power
work, but women have been discriminated against
and owned most of the wealth in most societies.
in many areas and denied equality of opportunity,
Intended or not, policies and laws have favoured
especially in the workplace.
7O MENA NDT HELAW At both federal and state levels, there is a sub-
today will be examined, as well as the legal and
stantial body of legislation and policy specifically
non-legal mechanisms for achieving equality
relating to the rights of women. In this unit of
(primarily in the workplace) and an evaluation of
study, the changing status of women in Australia
the effectiveness of these responses. Other issues relevant to the rights of women in Australia today will be covered in the HSC course in the unit on family law.
(ISTORICALROLESAND attitudes For many years, the attitude that women are different from men and inferior in significant ways has been reflected in the laws and policies of Western societies. These attitudes meant that women had only a short period of paid employment – if any – until they married and took up the role they were destined to fulfil – that of homemaker. Men almost exclusively held all positions of power and owned practically all property. It followed that the position of women in society was one of subservience and powerlessness. Women’s working lives involved domestic duties such as rearing children, preparing food, sewing and various other tasks in the home. This position was strongly influenced by biology. As most women were always bearing children (no reliable and safe contraception was available), they were left at home, dependent on their male partners. Views of women’s essential nature extended Figure 10.1 Historically, women’s role was that of homemaker.
214
to various aspects of social life, and sometimes
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attempts were made to explain or justify these views. Much was written and said by men about women, especially in Victorian England, from reasons as to why they belong in the home bearing children to analysis of their sexual desires.
L aw in p rac tic e
There have been signature times throughout the last 120 years where women’s restricted roles were more prominently challenged. The two World Wars saw women, through necessity, take on nontraditional roles due to the shortage of men on the home front. This was especially so during the Second World War. Women ran farms, worked in factories, and generally maintained productivity at home. Although this work was at times hard and challenging, it was also liberating for many women, because for the first time they understood their full potential outside the traditional roles assigned to them in society. Women also began to question why many areas of employment were denied to them, and more importantly, why they did not receive equal pay. In 1943, an Australian Women’s Conference for Victory in War and Victory in Peace was held in Sydney. The participants drew up a program of reforms for the government to incorporate into postwar Australia. This document, the Australian Women’s Charter, contained 23 objectives such as the establishment of a national network of child
Figure 10.2 During the Second World War women took on roles in factories and on farms to help with the war effort.
care centres, and equal pay. It is considered a ‘landmark manifesto’ of Australian feminism. For many women, though, the end of the war meant room had to be made for the returning soldiers, and they resumed their domestic roles as wives, mothers and homemakers.
and the Sex Discrimination Act 1984 (Cth) were products of this era. In 1975 the United Nations
feminism the advocacy of rights for women on the basis of the equality of men and women; there are many varieties of feminist ideas in political and social thought
proclaimed that year to be Inter-
The 1960s and 1970s was the next significant
national Women’s Year to promote
2 %6) %7
period of time when women questioned their
issues relating to women around
1 Describe the social attitudes
secondary status to men and why they did not
the world.
about women prior to the
enjoy the same rights as men. The feminist
Today in Australia there is a
20th century and give some
movement of this time challenged, for example,
significant body of law that protects
reasons why these attitudes
discrimination in the workplace and liquor
the rights of women and promotes
permeated society.
licensing laws in some states that said women
equality of opportunity. Having
2 Prepare a detailed timeline
couldn’t be served in the public bar. Important
said this, the status of women in
to outline the historical
pieces of legislation such as the Family Law Act
society today is still affected by
development of the roles of
1975 (Cth), the Anti-Discrimination Act 1977 (NSW)
particular issues and concerns.
women in society.
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0ROGRESSANDCHALLENGES FORWOMEN
enter professions. Many women who had successfully completed their degrees were able to do so, and some were elected to parliament in the 1920s.
%DUCATION TRAININGAND WORKFORCEPARTICIPATION
NSW enrolled in secondary school increased from
A person’s status in society is greatly influenced
46.7% in 1989 to 52.2% in 2004. The retention rate
by opportunities to acquire skilled employment.
in Years 11 and 12 nationally has also increased
Historically, women who wanted to enter pro-
steadily over the last 20 years, from 37% to
fessions had many barriers to overcome – some
81% in 2005. Women also constituted over 50%
of which persist today. The formal education that
of people enrolled in higher education courses
most young girls received was usually short in
and represented 49% of students in vocational
duration and assumed a future as a homemaker.
education. The number of women in NSW with
In the 19th century, there seemed no pressing reason for young women to complete their
The proportion of young women aged 15–19 in
post-school qualifications has also risen, from 38% in 1990 to 52% in 2005.
secondary education, let alone go to university.
Women, however, have been under-represented
Those women who were able to attend university
in trade apprenticeships in NSW. Of all persons
to study courses such as law and medicine did so
undertaking apprenticeships in 2006, only 13.5%
in the knowledge that even if they passed their
were women. This seems consistent with the level
exams, they were not given degrees and effectively
of occupational segregation seen in NSW and
were barred from practising in their chosen field.
throughout Australia today, especially in the trades.
This did not deter some women, whose thirst
Occupational segregation will be examined later.
for knowledge and a chance to use their talents spurred them on anyway.
With respect to labour force participation, women have made significant gains. Women aged
Passage of the Women’s Legal Status Act 1918
over 15 made up 45% of the NSW labour force in
(NSW) opened the way to recognition of the right to
2005, and the median age of women in the labour force was 38 years. However, in 2005, of all the women in NSW who were working, 42.9% were employed part-time and they represented 70.8% of all part-time workers. In 2006, nationally, 58% of all women aged 15–64 were in the workforce, with 45% of these working part-time, while only 18% of men worked parttime. Across Australia, women still constitute the majority of part-time and casual workers, and workers in these categories often lack job security and other benefits available to those in full-time employment, such as parental leave and holiday pay. These and other issues such as pay equity and women in leadership roles will be discussed later. Large proportions of all new apprenticeships and traineeships for the 12 months to June 2006 were in the Intermediate Clerical, Sales and Service Workers (31.7%) and Tradespersons and Related
Figure 10.3 Women have been and continue to be under-represented in trade apprenticeships in NSW.
216
Workers (28.4%) occupational groups (see Table 10.1). Most (85.9%) of the new apprentices and
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trainees in the Tradespersons and Related Workers
apprentices and trainees in the Intermediate
occupation group were men, whereas 70% of new
Clerical, Sales and Service Workers were women.
/CCUPATIONGROUP
-EN
7OMEN
2 %6) % 7 1 Examine Table 10.1
4OTAL
above and outline the
Managers and administrators
1760
700
2460
occupation groups in
Professionals
1310
1290
2600
which women were well
Associate professionals
11 180
11 260
22 450
represented and under-
Tradespersons and related workers
65 290
10 680
75 970
1770
4500
6270
Intermediate clerical, sales and service workers
25 450
59 330
84 780
Intermediate production and transport workers
25 490
4340
29 830
6860
10 620
17 480
apprenticeships and
17 930
7480
25 410
trainee commencements.
157 050
110 200
267 250
Advanced clerical and service workers
Elementary clerical, sales and service workers Labourers and related workers Total
L aw in p rac tic e
Table 10.1 Apprentice and trainee commencements by occupation group and gender, June 2006
represented in 2006. 2 Give some possible reasons for women’s under-representation in some areas of
NCVER, National Apprentice and Trainee collection, September 2006 estimates, unpublished data
3OCIALSECURITY
meets certain income tests. Separated parents can
In the early 20th century, the provision of welfare
receive financial assistance with the cost of child
payments to people who were unemployed or
care through the Child Support Agency.
other wise experiencing difficulty earning an
Studies have shown that over the long term,
income was not seen as a responsibility of the
women fare far worse financially than men after
federal government. This changed with the Great
a divorce. In addition, around 90% of lone-parent
Depression in the early 1930s, when it became
families are headed by women. The responsibilities
apparent that at times people may be unemployed
of child care present significant barriers to entering
due to circumstances beyond their control.
the workforce. While financial support from the
Unemployment benefits today are available
government is therefore vital, most people who
to women as well as men. There are also family
are dependent on welfare as their main source of
allowance payments to assist with the costs of
income nevertheless live below the poverty line.
raising children, and low-income families may also receive rental assistance to help with private rental accommodation. All people who have carers’ responsibilities,
Refer to Chapter 10 on the Student CD
for example for a disabled family member, can
for information relating to:
receive Carer Payment benefits because their
s marriage
responsibilities affect their ability to earn an
s the right to own property
income. The majority of carers are women. Most
s the ability to sue and enter
recipients of Parenting Payments are also women.
poverty line the minimum level of income needed to meet basic necessities and below which a household is defined as poor; an adequate standard of living and thus the poverty line will be different for different countries
contracts
A person, regardless of marital status, can qualify
s the right to vote
for Parenting Payments if he or she has primary
s jury service.
responsibility for one or more young children and
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employers. Moreover, they are often less able to afford to work only part-time. Migrant women have been employed in factories in substandard conditions throughout Australia. Because these women have little English, they have not always been aware of their rights. Some of these workplaces are characterised by unsafe conditions, onerous shift work, bullying, inadequate toilet and rest room facilities, little attempt to have multilingual health and safety signs, and pay that does not meet legal minimum wage conditions. The trend towards contracting with labour hire companies for casual workers has exacerbated the problems, as companies thereby avoid legal obligations that they would otherwise have to employees. A large number of migrant women also carry out home-based work. While this work offers flexible hours and there is no need to pay for child care, evidence suggests that many women work long hours in poor conditions and are paid a pittance on a piecework basis. In 1992, the federal government Inquiry into Equal Opportunity and Equal Status for Women in Australia reported on this situation in its publication Half Way to Equal. As documented in the submission of the Asian Women at Work Action Group to the 2007 National Industrial Relations Inquiry, and a July 2008 report by the Human Rights and Equal Opportunity Commission, as it then was known, the problems Figure 10.4 Migrant factory workers
are still very much in evidence. It has also been noted that immigrant women have an unemployment rate higher than Australian-born people, and for those from non-
7OMENFROMNON %NGLISH SPEAKINGBACKGROUNDS
218
English-speaking backgrounds, it is even higher than for immigrants fluent in English.
Migrant women throughout Australia experience
Even those migrant women with a high level of
the same barriers as other women, but the prob-
educational qualifications usually cannot work in
lems are compounded by a language barrier,
Australia without undertaking expensive bridging
especially in the workplace. There is a high con-
courses, sometimes on top of a recognised lan-
centration of migrant women in in blue-collar jobs
guage course. As a result, many of these women
which are not known for flexible working hours,
must take jobs that pay far less than the jobs they
and generally have less confidence in negotiating
would have had in their original countries, because
job-sharing or part-time options with their
their qualifications are not recognised.
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2%6)%7
2 %3%!2 #(
1 Explain some of the main
Asian Women at Work (www.awatw.org.au/) has a
issues in the workplace facing
membership of over 1300 migrant women workers. The
women from non- English-
group works to educate and empower Asian women
speaking backgrounds.
workers in Australia. 1 Use a search engine to find websites that discuss the
English-speaking backgrounds are more likely to be exploited
L aw in p rac tic e
2 Outline why women from non-
activities of Asian Women at Work. 2 List the specific difficulties that migrant women face at
in the workplace.
work. 3 What recommendations does the group make for tackling these difficulties? 4 What agents would be involved in these efforts and what are their roles?
)NDIGENOUSWOMEN The impact of colonisation on Indigenous women was devastating. In addition to disease and massacre, it is generally accepted that there were many examples of young girls and women being victims of sexual assaults from the non-Indigenous community. For the children of the stolen generation and their families, the consequences of the practice of taking children from their parents were great spiritual, physical and emotional suffering. Today, compared to non-Indigenous women, Aboriginal women fall behind on most indicators of health and well-being. The life expectancy of Indigenous women is 65 years compared to 83 years for non-Indigenous women. Indigenous women are twice as likely to suffer from cervical cancer and eight times more likely to die from it than non-Indigenous women. Diabetes resulting from dietary and lifestyle
Figure 10.5 Today, compared to non-Indigenous women, Aboriginal women fall behind on most indicators of health and well-being.
issues is a major problem. Indigenous women between the ages of 35 and 64 are 33 times more likely to die from diabetes than non-Indigenous
34.2% for non-Indigenous women.
2 %6 ) %7
women.
With respect to higher education,
1 Outline some of the health
Their labour force participation rate was 43%
only 3.5% of Indigenous women
compared to 52% participation for non-Indigenous
held a degree, whereas 14% of non-
women in 2001. Retention rates to Year 11 and
Indigenous women did so. Thus
12 were 24% for Indigenous women aged 15 and
far, many government attempts to
attempts to resolve these
over in NSW. Nationally only 16.3% of Indigenous
overcome these entrenched disad-
issues have failed. Suggest
women had a post-school qualification, compared to
vantages have failed.
possible reasons for this.
and well-being issues facing Indigenous women today. 2 Assess why some of the
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- E C H A N I S M S F O R A C H I EV I N G J U S T I CE F O R WO M E N Problems confronting women today include
against Women, the body set up to monitor the
political and economic inequality; unequal access
implementation of the treaty. Articles 23 set out
to education, training and development; difficulty
the provisions governing the formal operation
in gaining promotion; unequal pay; and sexual
of the treaty, for example the time frame for its
harassment.
being open for signature and entering into force, and how disputes about interpretation are to be
opened for signature (of a treaty) having negotiations concluded and ready for parties’ signatures. Many treaties, especially those convened by the UN, will be open for signature only until a certain date; others, such as the Geneva Conventions, are open for signature indefinitely entered into force (of a treaty) having become binding upon those states which have consented to be bound by it nation-state a politically independent country direct discrimination a practice or policy of treating a person or group of people less favourably than another person or group in the same position, on the basis of sex, race, national or ethnic origin, age, sexuality or other characteristic indirect discrimination practices or policies that appear to be neutral or fair because they treat everyone in the same way, but which adversely affect a higher proportion of people from one particular group
220
,EGALRESPONSES
resolved.
)NTERNATIONALLAW
obligation to ensure that its laws and policies
The main treaty that addresses discrimination
protect the rights of all women and promote
against women around the world is the United
equality of opportunity.
As a signatory country, Australia has an
Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It was opened for signature in 1979 and entered into force in 1981. The preamble of CEDAW acknowledges that
Refer to Chapter 10 on the Student CD for: s information relating to the role of the
the Charter of the United Nations and the Universal
United Nations in protecting the rights
Declaration of Human Rights affirm that all human
of women
beings are born free and are equal in dignity and
s an extract from the United Nations
rights. It also acknowledges that under human
Convention on the Elimination of All Forms
rights treaties, nation-states have responsibilities
of Discrimination Against Women
to ‘ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights’. discrimination against women continues to exist
$OMESTICLAW
around the world. The treaty states that this
Legislation protecting women from discrimination
discrimination
exists at both state and federal levels in Australia.
It affirms that, despite these various instruments,
is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity.
Discrimination means treating someone unfairly because of some characteristic. Discrimination on the basis of sex may be considered to include discrimination because of someone’s marital status or because she is pregnant or likely to become pregnant. There are two types of sex discrimination:
direct
discrimination
and
indirect discrimination. Direct discrimination is
The Convention contains 30 articles. Articles
a more blatant form and is more easily identified:
1–16 set out the main rights of women. Articles 17–
for example, where male employees are offered
22 outline the powers and responsibilities of the
first choice for extra overtime ahead of female
Committee on the Elimination of Discrimination
employees.
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L aw in p rac tic e
Figure 10.6 More women than men interrupt their working lives for a period of time when they have children.
Indirect discrimination is usually harder to
sexual harassment as a form of discrimination
detect. It occurs when there is a procedure, rule
in employment and education and makes this
or practice that on the face of it is the same for
behaviour illegal.
everyone and not discriminatory, but when carried
The other main aim of the Act is to promote
out, actually discriminates against a particular
community respect for the principle of the equality
group of people. Indirect discrimination can occur
of men and women.
even when there is no intention to discriminate. An
The Sex Discrimination Act makes it illegal to:
example provided by the Australian Human Rights
s discriminate against someone on the basis of
Commission is a situation where a manager offers a wage increase to all employees who have worked for the company for a number of years without interruption. On the face of it this may not seem
sexual harassment any unwelcome sexual behaviour, such as sexual advances, suggestive comments, unwanted touching, written communication or gestures, especially in the workplace
sex, marital status or pregnancy s dismiss someone from her or his job on the basis of the person’s family responsibilities s sexually harass someone.
discriminatory; however, given the fact that many
Sexual harassment is any unwelcome or un-
more women than men interrupt their working
wanted sexual behaviour which makes a person
lives for a period of time when they have children,
feel offended or humiliated and where that reac-
this policy has the effect of treating women less
tion is reasonable in the circumstances. It has
favourably than men.
nothing to do with mutual attraction or friendship. It occurs when a woman is subject to unwelcome
SEX D ISCR IMIN AT ION AC T 1984 ( C TH )
behaviour from others because of her gender. It
Some but not all provisions of the Convention on
can include behaviour such as unwanted sexual
the Elimination of All Forms of Discrimination
advances, touching without consent, or making
Against Women were implemented in Australian
jokes or suggestive comments that are gender-
law through the Sex Discrimination Act 1984 (Cth).
oriented.
The Act aims to eliminate discrimination on
Often there is a power imbalance between the
the basis of sex, marital status or pregnancy
harasser and the harassed; usually the harasser
in a number of key areas such as employment,
occupies a higher position at the workplace. The
education, the provision of goods, facilities and
person being harassed may think that her (or his)
services, accommodation and housing, insurance
advancement, or indeed continued employment,
and superannuation. The Act explicitly included
depends on accepting such sexual overtures. This
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2/9/09 8:01:27 PM
can make it difficult to establish a case for the harassment, even if the person decides later to
Refer to Chapter 10 on the Student CD
make a complaint. In O’Callaghan v Loder [1984]
for information relating to:
EOC 92-023, Loder, who was the Commissioner for
UÊ the Australian Human Rights
Main Roads, made sexual advances to an employee, O’Callaghan. While the NSW Equal Opportunity Tribunal recognised the power imbalance and was
Commission UÊ a range of sex discrimination cases from 2006 to 2007
sympathetic to O’Callaghan, it nevertheless held that there is also an onus on the employee to make it known to the employer if his conduct is unwel-
RE VIE W 10.5 1 Describe the difference between direct and indirect discrimination.
A NTI -DI SC RI M I NATI O N A C T 1 9 77 ( N S W )
come. The tribunal was not satisfied that
The broad-based Anti-Discrimination Act 1977
O’Callaghan had made it clear to Loder
(NSW) outlaws discrimination on the basis of sex,
that she was offended by his behaviour;
race, gender, marital status, disability, respon-
therefore, if Loder was not aware that his
sibility as a carer, homosexuality, and age. It
conduct amounted to sexual harassment,
also establishes the Anti-Discrimination Board,
he did not breach the law.
which is part of the NSW Attorney General’s
A person who has a complaint under the
Department, to oversee the implementation of
Sex Discrimination Act can take action
the Act. The Equal Opportunity Division of the
discrimination is difficult
through the Australian Human Rights
NSW Administrative Decisions Tribunal hears
to establish and then
Commission, set up under the Human
complaints of discrimination.
prove.
Rights and Equal Opportunity Commission
Women who feel they have been discriminated
3 Outline the objectives of
Act 1986 (Cth) and formerly called the
against can make a complaint to the Anti-
the Sex Discrimination
Human Rights and Equal Opportunity
Discrimination Board, which will investigate the
Act 1984 (Cth).
Commission (HREOC). The Commission
complaint and try to help the parties to reach a
will investigate the complaint and organise
solution. If the board cannot resolve a complaint,
by ‘sexual harassment’.
a conciliation conference to try to resolve
women can take their case to the Equal Oppor-
What needs to occur
the complaint with the other party. If
tunity Division of the Administrative Decisions
before a complaint of
conciliation fails, the complainant may
Tribunal, established under the Administrative
sexual harassment can
make an application to the Federal Court to
Decisions Tribunal Act 1997 (NSW), which can
be initiated?
have the complaint heard.
make a decision like a court.
2 Explain why indirect
4 Define what is meant
Table 10.2 Sex Discrimination Act 1984 (Cth) – complaints received by ground 2006–07 Sex Discrimination Act
Total
Sex discrimination
Percentages (%)
449
45
30
3
Pregnancy
170
17
Sexual harassment
186
19
39
4
118
12
3
–
995
100
Marital status
Parental status/ family responsibility Victimisation Aiding, permitting, instructing another personto do the act complained of (s 105) Total
Australian Human Rights Commission, Annual Report 2006–07
222
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women should be dealt with on
2 %3%!2# (
complaint within 12 months of the alleged incident
the basis of merit’. This means
1 Go to www.lawlink.nsw.gov.
and it must be in writing.
that matters such as selection and
au/lawlink/caselaw/ll_caselaw.
promotion of employees should
nsf/pages/cl_adt and research
EQUAL OPPORT UN IT Y F OR WOMEN I N
be based solely on their quali-
some decisions made by the
THE W OR K PL AC E AC T 1999 ( C T H )
fications, experience and ability
Equal Opportunity Division of
The principles of equal opportunity in the work-
to do the job.
the Administrative Decisions
place reflect the right to equitable access to jobs,
The Act also establishes the
career paths, training and staff development and
Equal Opportunity for Women in
equitable conditions of employment.
the Workplace Agency to oversee
of the Anti-Discrimination
the implementation of the Act.
Board website (www.lawlink.
In essence equal opportunity is about:
Tribunal in 2008. 3 Go to the publications section
s treating people with dignity and respect
nsw.gov.au/ADB), click on
s unbiased management decisions
'OVERNMENTAGENCIES
‘publications’ and then ‘fact
s ensuring equal access in all areas of employ-
There are agencies at both federal
sheets’. Select a fact sheet
ment including recruitment, training and
and state levels that provide
that is relevant to women and
development, promotion, transfer, access to
policy advice on women’s issues.
summarise women’s rights in
information, supervision and management of
The federal Office for Women
staff and conditions of employment, with all
(OfW) is part of the Department
selection based on merit (the best person for
of Families, Housing, Community
the job)
Services and Indigenous Affairs.
s recognition and respect for the social and
this area.
Its primary role is to provide policy
cultural backgrounds of staff and customers.
advice to the Minister for the Status of Women, and
In other words, diversity is valued.
to ensure that government and Cabinet decisions
The Equal Opportunity for Women in the
about legislation, policy and budgetary matters are
Workplace Act requires certain organisations to
made with a view to their effect on women. The
establish workplace programs to remove the
OfW also administers programs to combat issues
barriers to women in the workplace, both when
such as domestic violence and sexual assault,
they enter and as they advance. Under the Act, any
represents the Australian government at national
organisation that has 100 or more employees and
and international forums on women’s issues, and
that is a higher education institution, a private sector
has primary responsibility within the government
company, a non-profit or community organisation,
for Australia’s obligations under CEDAW.
a private school, or a union must develop and implement such a workplace program.
At state level in NSW, the Office for Women’s Policy is part of the Policy Development Division of
The Act’s objectives reflect the idea that in a just
the NSW Premier’s Department. It advises the state
and fair world there should be an equitable spread of
government and works with other government
both sexes in management and support jobs across
agencies and non-government organisations to
all industries. At present this is not case. It is also
develop programs and policies with positive
hoped that equal opportunity will provide much
consequences for women. The office also has res-
needed role models in managerial positions so that
ponsibility for a Violence Prevention Coordination
younger women will aspire to these positions. As
Unit, to lead and manage government policy relating
well, no woman can be considered for a particular
to the prevention of domestic and family violence.
job for which she is not suitably qualified. The Act
It funds the Women’s Information and Referral
is not about putting women in jobs ahead of men:
Service, a confidential telephone contact number
section 2A(a) clearly states that one of its objects
for information about organisations and services
is ‘to promote the principle that employment for
for women in NSW.
Cha pter 10 – Women
9780521734699part_03_3pp.indd 223
L aw in p rac tic e
Complainants generally must make their
223
2/9/09 8:01:29 PM
Figure 10.7 Some companies provide mentoring for high-achieving university graduates.
2 %6) %7 Refer to Chapter 10 on the Student CD for information relating to the Equal Opportunity for Women Agency.
1 Explain the role of the Office for Women and the Office for Women’s Policy. 2 List and discuss some issues that might be raised by these offices in the development of law and policy relating to: s requirements for businesses regarding conditions of employment s budget provisions regarding the funding of health care
Figure 10.8 The ACTU has in recent times campaigned strongly for better rights for women in the workplace.
224
s programs in which business leaders provide mentoring for high-achieving university graduates
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.ON LEGALRESPONSES Legal mechanisms have been put in place to overcome the historical and cultural barriers that women still face. There are also some very effective informal measures that keep the issues
L aw in p rac tic e
of women on the political agenda.
2OLEOFTRADEUNIONS In the early part of the 20th century, unions were against women’s full participation in the workplace. As women were paid less than men, unions did not want a situation where employers were able to exploit this cheap labour and force men out of jobs. Today unions are strong advocates for the rights of women in the workplace. The Australian Council of Trade Unions (ACTU) lists the following achievements to which the union movement has contributed: s the principle of equal pay for equal work s parental leave for women s improved child care s universal superannuation s anti-discrimination
and
affirmative
action
legislation. A fundamental challenge still facing the ACTU itself is the fact that women are still underrepresented in the executive levels of the major unions in Australia compared to their level of union membership. Most recently, the ACTU has campaigned for paid maternity leave, which it believes is
Figure 10.9 Workers protest against industrial relations reforms in Melbourne.
a fundamental human right and a necessary measure to address the discrimination and disadvantage suffered by women who choose to be
to bond with and breastfeed their babies without
parents. At least 157 countries have had some
financial considerations necessitating an early
form of paid leave, and of the 30 member states
return to work.
of the Organisation for Economic Co-operation
In May 2009 the Commonwealth government
and Development (OECD), only Australia and the
announced that 18 weeks’ paid parental leave
United States did not. Without paid maternity
would be introduced, starting in 2011. The delayed
leave, women face a lack of job security and
start date was due to the effects of the global
income loss if they take time off after bearing a
financial crisis on the budget. The scheme extends
child. Paid maternity leave gives mothers time
paid leave to either parent of a newborn child if
Cha pter 10 – Women
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225
2/9/09 8:01:36 PM
Now, just what does this thing do again?
Figure 10.10 Even today the Office for Women is collating data showing that women still do more housework than men.
2%3 % ! 2#( 1 Visit the web page titled ‘Engaging with women’s organisations’ on the Office for Women website at www.fahcsia. gov.au/sa/women/progserv/equal/ Pages/engaging_womens_org. aspx and research two national women’s organisations. Outline the main issues with which they are concerned, and their objectives. 2 Visit the WEL homepage at http:// welnsw.org.au and research two policy positions of WEL. Write a one-page report on what you discover.
226
he or she is the primary carer and
Electoral Lobby (WEL), founded in 1972.
earns less than $150 000 per year. The
WEL is dedicated to ‘creating a society
decision was welcomed by parents, the
where
union movement, Sex Discrimination
potential are unrestricted, acknow-
Commissioner
Elizabeth
women’s
participation
and
Broderick,
ledged and respected, and where
and commentators who have argued
women and men share equally in
that law and policies making it easier
society’s responsibilities and rewards’.
for fathers to take a greater role in child
WEL is a self-funded, non-profit
care are necessary in order for women
organisation, not affiliated with any
truly to have choices.
political party, that lobbies governments, publishes research papers, parti-
,OBBYGROUPS
cipates in public debate, participates
There are non-government organisa-
in legal cases where women’s human
tions (NGOs) throughout Australia that
rights are at issue, and conducts
promote issues important to women. A
campaigns to raise awareness of these
well-known
issues.
NGO
is
the
Women’s
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As we have seen in previous chapters, the law is
them to refuse to comply with certain parts of the
constantly evolving through legislation and the
treaty. Hence the Committee on the Elimination
courts. It must reflect the changing values of the
of Discrimination Against Women is not able to
society it is meant to regulate. Over the past 30
declare a nation-state to be in violation of the
years, women in Australia have seen landmark
treaty where it has entered certain reservations.
legislation passed addressing the issues they face,
The committee can only continue to encourage
especially in the workplace.
nation-states to review their current reservations.
In spite of the many improvements that women
Upon ratification, the Australian government
have fought for and achieved, there are still
entered a reservation with respect to paid mater-
many areas that require constant vigilance and
nity leave. It also entered a reservation stating
persistence in order for change to occur. It is in
that it ‘does not accept the application of the
this light that the legislation and mechanisms for
Convention in so far as it would require alteration
achieving justice for women will be evaluated.
of Defence Force policy which excludes women
We will look at the responsiveness of the law in
from combat duties’. In 2000, the government
relation to Australia’s international obligations
withdrew the latter reservation and stated that it
under CEDAW, discrimination, equality of oppor-
would be reviewing this policy to define ‘combat’
tunity (especially in the workplace), and issues
and ‘combat-related duties’ more closely. As of
emanating from these such as pay equity, gender
2009, it is likely to withdraw the reservation as to
segregation, sexual harassment and child care.
paid maternity leave, as well.
%FFECTIVENESSOF INTERNATIONALRESPONSES
are still many areas where women experience
Women around the world are exploited and
women and girls sold into sex slavery each year
abused as a result of their unequal position under
and that approximately a quarter of all women
the laws of their countries. The UN Convention
experience domestic violence. It is estimated
on the Elimination of All Forms of Discrimination
that up to 130 million women are victims of geni-
Against Women (CEDAW) was a significant step
tal mutilation. Literacy is still a major cause of
forward in highlighting the issues and getting
concern: two-thirds of all adults who are illiterate
nation-states to commit to ending discrimination
are women. This is a consequence of poor edu-
against women.
cation opportunities for girls compared to boys,
Due in large part to parties’ reservations, there discrimination and violations of their human rights. It is believed that there are at least four million
Sovereign states can choose to comply with or
especially in developing countries. Women are
ignore their international obligations and usually
also four times more likely to be infected with HIV/
act out of economic or political self-interest in
AIDS than men, and up to 130 million women die
determining their course of action. CEDAW is
from this disease each year. Education about the
one of the treaties most ignored by nation-states.
spread of AIDS and programs that address specific
Those nation-states that have signed the treaty
health issues relating to women are not adequate
have included many reservations, which allow
in many poorer countries.
L aw in p rac tic e
2ESPONSIVENESSOFT HELEGA L S YS TE M T O E F F O R T S T O A C H I EVE J U S T I CE F O R WO M E N
gender segregation the separation of people according to their gender reservation a statement made by a nation-state when signing or ratifying a treaty, that allows it to exclude certain provisions or modify them as they apply to the nation-state’s own practice
Cha pter 10 – Women
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2/9/09 8:01:39 PM
Figure 10.11 The fifty-fifth session of the Commission on the Status of Women entitled ‘Women 2000: Gender Equality, Development and Peace for the twenty-first century’, at the UN Headquarters in New York.
optional protocol an addendum to a treaty, agreed to by the parties at a later date, to create enforcement provisions or to interpret the treaty in light of later developments
228
At the same time, 179 countries have ratified
to the international community about its com-
CEDAW and have passed laws consistent with the
mitment to the treaty. Australia has a good record
treaty. Millions more girls now receive a primary
with respect to laws and policies in place for
school education and millions of women have
women, compared to other countries in the world.
been able to take out loans or now have the right
The Sex Discrimination Act 1984 (Cth) is one such
to own or inherit property in their own right. The
mechanism.
issues listed above are now well established on the
Critical assessments have suggested that there
global agenda, whereas prior to CEDAW they were
are gaps in our laws with respect to women. For
isolated issues in different countries, the extent of
example, the Human Rights and Equal Opportunity
which was not effectively monitored.
Commission’s 1999 report Pregnant and Productive
An optional protocol has been approved by
discussed the idea that it is a right, not a privilege,
the UN General Assembly to provide an additional
to work while pregnant, and pointed out gaps in the
enforcement mechanism, as exists with most
coverage of federal anti-discrimination legislation
other human rights instruments. This would allow
regarding that issue. Other critics have noted that
individuals and groups to be able to make a direct
the Sex Discrimination Act fails to take into account
complaint to the CEDAW committee about alleged
the fact that gender may combine with other
breaches of the treaty. The optional protocol does
characteristics of a person (e.g. race, disability or
not add extra rights. Rather, it tries to improve the
sexuality), resulting in different forms of disadvan-
enforceability of the existing instrument.
tage. In other words, it is not the case that discri-
The Australian government has an opportunity
mination is the same for all women, regardless of
to sign the optional protocol and send a message
their individual attributes. Moreover, its reliance
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2/9/09 8:01:40 PM
on complaints by individuals or groups directly
There are other factors that limit
affected, rather than addressing discrimination at
the effectiveness of the legislation in
1 Explain with examples
the systemic level, makes enforcement problematic
redressing grievances. Even if a com-
why there is a need
(see Beth Gaze, ‘The Sex Discrimination Act after
plainant wins the case and is awarded
for treaties such as
Twenty Years: Achievements, Disappointments,
damages, a woman may have to
the Convention on the
Disillusionment and Alternatives’, University of New
return to a hostile work environment.
Elimination of All Forms
South Wales Law Journal, 2004, p. 53).
On top of this, the cost – economic
of Discrimination Against
and emotional – may be extensive.
Women (CEDAW).
Commission) argues that Australia’s signing on
Proving that an employer or other
to the optional protocol would provide the will to
person has discriminated against a
and how do they limit the
correct such deficiencies, as individuals then would
complainant can be difficult, and most
effectiveness of CEDAW?
be able to complain directly to the committee,
of the time not possible. At the same
3 Evaluate the extent to
putting
time, the Sex Discrimination Act has
which the Australian
enabled some important cases to be
government has
won. In 1994, a woman won $160 000
implemented the
after losing her career and a position
provisions of CEDAW.
added
pressure
on
the
Australian
government.
%FFECTIVENESSOF DOMESTICRESPONSES
as a partner in a law firm. This was
2 What are reservations
4 Outline how the
the largest award under the Act at the
signing of the optional
!NTI DISCRIMINATIONLEGISLATION
time, but many would argue that this
protocol for CEDAW
State and federal anti-discrimination Acts provide
is a small amount for a career. For
would strengthen the
far-reaching protection to women who experience
people who win cases the damages
enforcement of the
any form of discrimination in the workplace.
awarded are usually under $10 000.
treaty.
There are few restrictions placed on women as to
The
provisions
of
the
Sex
what work they do. This is to some extent due to
Discrimination Act regarding sexual
discrimination law. Women today have moved into
harassment have been effective in that the only
the workforce in unprecedented numbers.
requirement is to show that the unacceptable
The effectiveness of the legislation may, how-
behaviour actually took place. Complaints of sexual
ever, still be limited by a lack of knowledge of
harassment remain high, but this could also be
rights or reluctance to exercise those rights. This
attributed to women’s greater awareness of their
can be for many reasons, such as fear of dismissal,
rights. A HREOC phone poll conducted in 2003 was
failure to recognise that there is a problem, or being
used to gauge the prevalence of sexual harassment
unaware that such rights exist in the first place.
in Australia. The findings revealed that 41% of
Most of the blatant forms of discrimination
Australian women aged 18–64 and 14% of men had
have disappeared due to complaints made against
experienced sexual harassment. Of these incidents,
employers and the educative effect of the laws.
two-thirds occurred in the workplace and less than
Discrimination today is usually more subtle and
one-third of these were reported to employers or
covert. Generally these types of discrimination
external authorities.
involve systematic practices of disadvantage. If an
HREOC also reviewed its own complaints data
employer has such a practice or policy that does
and found that that up to 67% of those who made a
disadvantage women, it is not illegal if the court
complaint left their place of employment. Of these,
believes it to be ‘reasonable’ (s 7(b) of the Act).
72% stated the harassment started in the first
This may go part of the way towards explaining
year of employment. Although unmeasured, the
the ‘glass ceiling’ that women have described as
economic cost to employers and the community
an impediment to their career progress.
as a result of this staff turnover is a poor use of
glass ceiling an invisible barrier that prevents women from rising in an organisation through promotion; on the face of it, a company may not directly discriminate, but subtle practices may still discourage women or prevent them from being promoted to more responsible and better paid positions
Cha pter 10 – Women
9780521734699part_03_3pp.indd 229
L aw in p rac tic e
HREOC (now the Australian Human Rights
2 %6 ) % 7
229
2/9/09 8:01:41 PM
human resources. It also reflects a residual lack of
simplify the definition of ‘indirect discrimination’.
respect for female colleagues in the workplace, as
The number of exemptions under the Act, such as
most of the complainants are women.
those relating to superannuation and insurance,
In spite of some of the criticisms outlined above,
have also been recently reduced.
the Sex Discrimination Act has continued to evolve.
It should be noted that the dif ference between
In 1992, the Act was amended to ban discrimination
the anti-discrimination and equal oppor tunity
on the basis of the occupation or identity of one’s
laws is that discrimination legislation is complaint-
husband or wife. The idea of ‘reasonableness’ as a
based, whereas the Equal Opportunity for Women
defence for direct discrimination on the grounds of
in the Workplace Act 1999 (Cth) is based on the
pregnancy was also removed.
introduction of programs to eliminate discrimi-
In indirect discrimination cases, the onus of
nation at a systemic level.
proof is on employers to provide a defence as to why systems and policies alleged to be indirectly discriminatory are reasonable and necessary. The definition of ‘sexual
Refer to Chapter 10 on the Student CD
2% 6)% 7
harassment’ was strengthened, with
for information relating to:
1 Draw up a table with two
the complainant only having to show
s pay equity
columns headed ‘strengths’
that she or he ‘reasonably’ felt
s gender segregation of the workforce
and ‘weaknesses’, then list
offended, humiliated or intimidated.
s patterns of employment
the strengths and weaknesses
In 1994, amendments extended
of the Sex Discrimination Act
the scope of protection under the
1984 (Cth).
Act. One of these measures was to
s equal opportunity in the workplace
Co nc l u s io n Women have made substantial progress histor-
they get into the workforce they find they face un-
ically on many indicators. The law, however, is only
equal pay, discrimination in access to good jobs
a part of the solution. It is not possible to legislate
and advancement in the workforce, and that they
attitudes, and firmly held beliefs sometimes can
are still assigned primary responsibility for child
never be changed. Hence improvement of women’s
care by a society that devalues both motherhood
rights and status in society will be generational,
and children, and is reluctant to provide adequate
and the importance of educative programs cannot
public support for the care and education of all its
be overstated.
children.
Beth Gaze, in another article, argues that both legal and social change are essential:
Beth Gaze, ‘Twenty Years of the Sex Discrimination Act: Assessing its achievements’, The Alternative Law Journal 30(1), February 2005
When women have equal access to economic resources, many other changes in their lives will
If we are to prosper as a nation, we cannot
follow. Girls and women in Australia are still in a
continue to disenfranchise 50% of the population.
double bind. They are told that they have equality
It is in everyone’s interest to make our society
and can pursue a career and the opportunities
more just and more fair.
offered by the world equally with boys, but when
230
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C hap t e r s u m m a ry
s Women historically were treated as second-class citizens. They were explicitly discriminated against in the areas of marriage, property, the right to vote, the ability to sue and enter contracts, and jury service. s Today women enjoy the same rights as men in most of these areas, but still experience economic, legal and social disadvantage. s Women from non-English-speaking backgrounds and Indigenous women face additional barriers to equality of opportunity. s The UN Convention on the Elimination of All Forms of Discrimination Against Women is the international treaty specifically addressing the many areas in which women experience discrimination. s In Australia, anti-discrimination and equal opportunity legislation has been passed at federal and state level. The chief Acts discussed in this chapter are the Sex Discrimination Act 1984 (Cth), the AntiDiscrimination Act 1977 (NSW), and the Equal Opportunity for Women in the Workplace Act 1999 (Cth). s The Australian Human Rights Commission (formerly HREOC) is a statutory body set up to administer the five federal antidiscrimination laws, one of which is the Sex Discrimination Act 1984 (Cth). s The Equality Opportunity for Women Agency (EOWA) is a statutory body, one of whose main functions is to oversee the development of equality of opportunity programs within organisations required to report under the Act.
s Two legal mechanisms that exist to promote the rights and equality of women are the federal Office for Women and the NSW Office for Women’s Policy. These bodies attempt to influence legislation and policy as it applies to women. s The ACTU and the Women’s Electoral Lobby are non-government groups that campaign on issues concerning women, especially in the workplace. s The effectiveness of CEDAW is limited by the many reservations by state parties. CEDAW’s strength is dependent on state parties affirming its principles in domestic legislation. s The effectiveness of the Sex Discrimination Act 1984 (Cth) is limited by factors such as lack of knowledge of rights, reluctance to exercise them, and the difficulty of proving discrimination. s The Sex Discrimination Act 1984 (Cth) has been strengthened by amendments that extend its scope, and remove certain exemptions and defences. The only requirement in sexual harassment cases is to prove that the offensive behaviour actually took place. The onus is on the employer to show why indirect discrimination was ‘reasonable’.
Cha pter 10 – Women
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M ul ti pl e -ch o i ce q u e s ti o n s 232
Which of the following statements about women’s historical status is NOT true? A Women have been seen as essentially different from men and therefore expected to have different social roles. B Women’s jobs have been valued less and paid less. C Events such as wars, despite their enormous social cost, have sometimes also provided opportunities for women. D Women have not always had the same rights as men because in the past, most women preferred the traditional social roles. Which of the following statements relating to women’s workforce participation is true? A Part-time and casual workers usually have the same work conditions as full-time workers, and they are paid the same, proportional to hours worked. B Workplace relations laws relating to pay and conditions are enforced more strictly in relation to labour hire firms and companies contracting to ‘outworkers’. C Many migrants to Australia have difficulty getting jobs suited to their qualifications, which may not be recognised, and they may face the additional challenge of making time to learn English. D Indigenous and migrant women have a lower unemployment rate than other Australian women, but they often have trouble getting part-time or casual work.
The Convention on the Elimination of All Forms of Discrimination Against Women contains: A anti-discrimination laws that can be adapted to suit a country’s cultural traditions B provisions condemning discrimination against women and setting out ways in which the state parties are to combat and prohibit it C provisions that can be enforced by the UN Security Council or the General Assembly D a preamble stating that women are biologically the same as men and therefore not entitled to special treatment such as safety precautions at work when pregnant The Sex Discrimination Act 1984 (Cth) prohibits: A unwanted touching and dirty jokes at work B indirect discrimination at work unless it is part of a ‘reasonable policy’ C discrimination against doctors’ wives because of their husbands’ profession D all of the above Australia’s signing the optional protocol for the UN Convention on the Elimination of All Forms of Discrimination against Women will allow which of the following to happen? A The federal government will be able to pass legislation prohibiting discrimination. B The Committee on the Elimination of Discrimination Against Women will advise nation-states on how best to implement the treaty. C The Committee on the Elimination of Discrimination Against Women will recommend trade sanctions against nationstates in breach of the treaty. D Individual Australians will be able to complain directly to the Committee on the Elimination of Discrimination Against Women.
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EX T EN DED R ES PON S E
Evaluate the effectiveness of the legal system in dealing with discrimination against women. ‘[The ideal worker] works full time and overtime and takes little or no time off for childbearing or child-rearing. Though this ideal worker norm does not define all jobs today, it defines the good ones: full-time blue-collar jobs in the working-class context and high-level executive and professional jobs for the middle class and above. When work is structured in this way, caregivers often cannot perform as ideal workers.’ (Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It (Oxford University Press, New York, 1999), pp. 91–4) A What consequences do these expectations of the ‘ideal worker’ have for women? B Do these consequences also apply to men? If your answer is ‘no’, would your answer be different if more men took a more active role in parenting?
L aw in p rac tic e
C hap t e r s u m m a ry ta s k s Top i c revi ew
Explain why women were treated as inferior to men in early Australian society. Explain the particular barriers experienced by Indigenous women and migrant women. Describe the different types of discrimination that women experience in Australian society. Define the term ‘equal opportunity’ and outline how it is provided for in Australian law. Outline the role of the main international mechanism that promotes the rights of women around the world. How is the NSW Office for Women’s Policy different from its Commonwealth counterpart? Assess the effectiveness of non-legal mechanisms in improving the rights of women in the workplace.
Explain the limitations that exist for a more effective implementation of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Discuss the strengths and weaknesses of the Sex Discrimination Act 1984 (Cth). What reforms have taken place through amendments? Discuss the effectiveness of the Equal Opportunity for Women in the Workplace Act 1999 (Cth) in removing barriers to equal opportunity in the workplace.
C Suggest some legal and non-legal mechanisms for addressing these consequences. Discuss.
Marking criteria for the extended response questions can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your responses.
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A r e a 2 : Eve n t s w h i c h h i g h l i g h t l e g a l i s s u e s
CHAPTER 11
k ey t er m s / v oc ab u l a r y
c hap ter ob j e cti ve s
The Bali bombings
234
In this chapter, students will: s describe the features of international law enforcement s describe the interaction between domestic legal systems of Australia and Indonesia s evaluate the effectiveness of using legal approaches consistent with the rule of law s evaluate the effectiveness of the law in achieving justice for victims s evaluate the effectiveness of legislation and other measures introduced in response to terrorism s locate quality information from authoritative sources using the internet.
9/11 Al Qaeda rule of law Osama bin Laden Islamic extremists superpower Jemaah Islamiyah Central Intelligence Agency jihad ‘war on terror’
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L aw in p rac tic e
rel ev ant l aw IM PORTA N T L EGIS L AT ION
Suppression of the Financing of Terrorism Act 2002 (Cth) Border Security Legislation Amendment Act 2002 (Cth) Telecommunications Interception Legislation Amendment Act 2002 (Cth) Australian Security Intelligence Organisation Amendment (Terrorism) Act 2002 (Cth) Criminal Code Amendment (Terrorism) Act 2003 (Cth) Charter of the United Nations Amendment Act 2002 (Cth) Anti-Terrorism Act 2004 (Cth) Anti-Terrorism Act (No. 2) 2005 (Cth) SIGNIFIC AN T C AS ES
R v Mallah [2005] NSWSC 358 R v Thomas [2006] VSCA 165 R v Lodhi [2006] NSWSC 691 R v Benbrika [2007] VSC 261
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Int roduc t ion 9/11 a term used to describe the terrorist attacks in the United States on 11 September 2001; otherwise known as September 11 ‘war on terror’ the term used in 2002 by US President George W. Bush to refer to his administration’s efforts to fight terrorism anywhere in the world using any means Al Qaeda an international Islamic extremist group, responsible for attacks on military and civilian targets in various countries, the most notable being the attacks on the US on 9/11 rule of law the principle that no one is above the law; the most important application of the rule of law is that governmental authority is exercised in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps (due process) Osama bin Laden Saudi Arabian-born founder of the Al Qaeda terrorist organisation Islamic extremists people who follow an extreme version of the Islamic religion which sanctions the use of violence to achieve their objectives
The Bali bombings were Australia’s 9/11. On
enforcement agencies to tackle the terrorist threat
12 October 2002, Australians were targeted by
on their doorstep. When compared with the ‘war
Islamic extremists in the most populous Muslim
on terror’ approach that the United States pursued
country in the world – Indonesia. How Australia
against Al Qaeda, the methods used by Australia
responded to this global terrorist act had the
and Indonesia, which were consistent with the rule
potential to damage its relationship with its
of law, were successful. The perpetrators of the
largest Asian neighbour – a relationship already
Bali bombings were caught, tried, and sentenced.
soured by Australia’s intervention in the conflict
In the US, however, after many painful and costly
in East Timor. Unlike the United States, Australia
years of the ‘war on terror’, Osama bin Laden
did not have the capacity to employ a ‘war on
remains at large and Al Qaeda is still a threat to
terror’ approach against Indonesia. Instead, the
global security. If a rule of law approach had been
Australian and Indonesian governments used the
followed by the US, would this result have been
full force of both their legal systems and their police
different?
A NDGLOBA LTERRORIS M The Bali bombings occurred one year after the
cells all around the world, prepared to strike at
‘September 11’ terrorist attacks in the United
any target. Their goals were to cause maximum
States. 9/11 has been seen as a wake-up call to
terror and panic while gaining a worldwide forum
the Western world to the demands of Islamic
to promote their cause.
extremists and their ability to cause widespread
In the face of increasing political and economic
fear. The terrorists who captured the planes and
instability throughout parts of the Muslim world,
flew them into the World Trade Center and the
terror organisations have provided a refuge for
Pentagon belonged to Al Qaeda. Their goal was
many young Muslim men who feel disenfranchised
to strike at the heart of the world’s most powerful
by what they view as anti-Arab and anti-Muslim
nation. Al Qaeda’s leader, Osama bin Laden, saw US
Western policies. Some have been motivated by bin
involvement in the Middle East – especially support
Laden’s September 11 attacks to carry out terror
for Israel – as an affront to Muslim interests, law
acts of their own against the US and its allies. In
and way of life. Bin Laden believed that Al Qaeda
the eyes of many Islamic extremists in Indonesia,
would be victorious in battle against the world’s
Australia was the most prominent American ally in
last remaining superpower, the United States,
the Asian region, and Australian and other tourists
just as it had been when it fought the former USSR
on the popular island of Bali were a logical target
(the Union of Soviet Socialist Republics, dissolved
for terrorism.
at the end of the Cold War) in Afghanistan. From the 1970s, terrorist acts were often a front page news item; however, they were acts confined
236
4HE"ALIBOMBINGS
to remote locations. The September 11 attacks
In the tourist district of Kuta in Bali just after
changed all that. Terrorism became a global
11 p.m. on 12 October 2002, a small bomb was
phenomenon and terror organisations mobilised
detonated in the backpack of a suicide bomber
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L aw in p rac tic e Figure 11.1 The Bali bombings destroyed the Sari Club and Paddy’s Bar, which were popular with Australian tourists.
Figure 11.2 Osama bin Laden
Figure 11.3 On 11 September 2001 the world entered an age of global terrorism.
at Paddy’s Bar. As people fled, another more
consulate in Bali; this was smaller and caused
powerful car bomb of about 1000 kilograms was
only slight damage. A total of 88 of the 202 people
detonated ten to fifteen seconds later in a white
killed were Australians. Another 209 people were
Mitsubishi van parked outside the Sari Club. This
wounded, most suffering from horrific burns. Bali’s
bomb caused massive damage, leaving a one-
local hospitals could not cope with the number of
metre-deep crater large enough for three cars. A
injured and many burns victims of all nationalities
third bomb was detonated outside the American
were flown to hospitals in Darwin by the RAAF.
superpower a country that has a dominant role in world politics and possesses military power in excess of other nations. At the end of the Second World War (1945) the USA and USSR were known as ‘superpowers’ because of their huge armies and nuclear arsenals. terrorism violence or the threat of violence, directed at an innocent group of people for the purpose of coercing another party, such as a government, into a course of action that it would not otherwise pursue
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2/9/09 8:01:52 PM
l eg al l i nks
Figure 11.4 Chaos on the night of the Bali bombings
Jemaah Islamiyah a radical Islamic organisation that has links with Al Qaeda Central Intelligence Agency the spy agency of the United States of America, responsible for gathering national security intelligence
238
reached Australia’s doorstep. The horrific images For an eyewitness account of the
of suffering and the harrowing accounts of the
blast that night see the Sydney
survivors were widely broadcast in the print, radio
Morning Herald article of 14
and television news media. All the while, people
October 2002 at www.smh.com.au/
struggled to comprehend the perpetrators’ moti-
articles/2002/10/14/10342226842
vations. At the government level there was
62.html
worldwide condemnation. Australian and Indo-
A large collection of articles,
nesian leaders both condemned the terrorist acts
photo galleries and video reports
and vowed to track down those responsible using
from 13–20 October 2002 has
every legal means available to them. It was imme-
been compiled by the Sydney
diately clear that the Australian and Indonesian
Morning Herald webpage and can
police would work cooperatively to bring the per-
be accessed at www.smh.com.au/
petrators of the Bali bombings to trial.
specials/Bali/
While no terrorist group took immediate responsibility for the Bali bombings, authorities around the world believed it to be the work of the radical Islamic association, Jemaah Islamiyah, known
4HEREACTION
as JI. Jemaah Islamiyah’s spiritual leader, cleric
People from all around the world expressed anger
Abu Bakar Bashir, was already under suspicion
over the Bali bombings. The attack was seen by
from the United States’ spy agency, the Central
many as a sign that full-scale terrorist activity had
Intelligence Agency (CIA). The US government
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2 %6) %7
that Jemaah Islamiyah posed a serious terrorist
1 What other types of extremism are
threat in the region. According to a New York Times
there in the world today? Discuss, with
report on 13 August 2002, the Americans believed
reference to the following factors:
there was new evidence of a direct link between
s economic privilege
Al Qaeda and Jemaah Islamiyah. They identified
s oppression
an Al Qaeda operative, Riduan Isamuddin, also
s political or cultural history
known as Hambali, who had links with Abu Bakar Bashir. Requests to take action from the US, the Philippines, Singapore and Malaysia, however, were ignored. At this stage, the Indonesian government
L aw in p rac tic e
had earlier advised the Indonesian government
2 Why are the September 11 attacks on the United States seen as a ‘success’ by Al Qaeda? 3 What is Jemaah Islamiyah?
was unwilling to publicly acknowledge that it had citizens involved in organised terrorism. After the Bali bombings, it had no choice but to act decisively against the terrorist threat within its borders.
Refer to Chapter 11 on the Student CD for additional activities relating to the reactions to the Bali bombings.
)NDONESIANAND!USTRALIAN relations The Bali bombings had the potential to destabilise Australian and Indonesian relations. Relations between the two nations have been difficult since the Indonesian republic was founded in 1949. Tensions were exacerbated in 1999 when Australia sent troops into East Timor to support the United Nations
mission
supervising
the
Figure 11.5 Riduan Isamuddin, also known as Hambali, was a key Al Qaeda operative who helped to mastermind the 9/11 attacks on the US and had links with Abu Bakar Bashir.
Figure 11.6 Abu Bakar Bashir is the spiritual leader of Jemaah Islamiyah and a key figure in the Bali bombings.
territory’s
transition to independence from Indonesia. The
able to cooperate in their efforts to track down
Bali bombings threatened to create a further
those responsible for the blast. Indonesia also had
division between Australia and the world’s most
economic motivations through its strong tourism
populous Muslim nation.
links with Australia, which it feared losing if it
Indonesia had recently emerged from years
did not act quickly and decisively. In addition,
of dictatorship to become a democracy based on
Indonesia needed to restore its reputation after
the rule of law. As a result, in the wake of the Bali
the poor handling of the killing of five Australian
bombings, they were keen to cooperate and behave
newsmen at Balibo in East Timor in 1975. Those
in a manner expected of a democratic nation. The
responsible for the deaths of the Balibo Five have
Indonesian and Australian governments were
still not been brought to justice.
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- E C H A N I S M S F O R A C H I EV I N G J U S T I CE AFTERTHE"ALIBOMBINGS ,EGALRESPONSES !USTRALIANn)NDONESIAN ENFORCEMENTCOOPERATION Within 24 hours of the Bali bombings, a team of investigative and forensic officers from the Australian Federal Police (AFP) arrived in Bali to assist the Indonesian National Police. A joint operation was launched and an effective partnership was forged between the two enforcement agencies. The AFP called the investigation ‘Operation Alliance’ and at its height over 120 police officers from state and federal Australian police forces worked beside Indonesian and international experts. ASIO officers were also involved. One of the biggest tasks faced was victim identification. This is an area in which the AFP has particular expertise. AFP officers were also involved in forensic investigation of the blast site to determine the nature and origin of the bomb.
32-year-old university graduate, Imam Samudra, was arrested after police traced his credit card details from an ATM. The chief Indonesian investigator, General I Made Mangku Pastika, stated that Samudra was most likely the leader of the group in both the planning and its execution. Apparently, Samudra had stayed in Bali for days after the Bali bombings to survey the destruction. Two other men were later arrested, both Amrozi’s brothers: Ali Imron and Ali Ghufron, also known as Mukhlas. Indonesian
authorities
continued
making
arrests of people implicated in the Bali bombings as late as July 2003. In one week in early July they arrested nine suspected Jemaah Islamiyah militants and seized large quantities of bombmaking chemicals, which indicated that more attacks were planned. In August 2002, Riduan Isamuddin, alias Hambali, was arrested by the United States. Hambali had been a close friend of Khalid Shaikh Mohammed, who planned the September 11 attacks and was known as the ‘Osama bin Laden
Refer to Chapter 11 on the Student CD
of south-east Asia’. He was the most wanted terror
for additional activities relating to the
suspect in the region, representing an important
Australian Federal Police
link between the Al Qaeda network and Jemaah
and ASIO’s responses to the
Islamiyah.
Bali bombings.
The US authorities did not, however, follow the rule of law approach once they had Hambali in custody. Hambali was declared to be guilty, by
240
4HEARRESTOFTHE"ALIBOMBERS
public figures including the US president, before
After an extensive joint police investigation numer-
in a secret location for three years where he is
ous arrests were made, which eventually led to 33
widely believed to have been tortured. Further
convictions. On 18 October 2002, the 64-year-old
calling into question the United States’ respect
cleric and spiritual leader of Jemaah Islamiyah, Abu
for the rule of law in this case was Hambali’s
Bakar Bashir, was taken in for questioning. Bashir
detention in Guantánamo Bay, Cuba. Since the
was an open admirer of bin Laden.
commencement of the ‘war on terror’ the United
sufficient evidence was found to substantiate his alleged crimes. In addition, the CIA held Hambali
The second major arrest occurred in November
States has held suspected terrorists there for years
2002: a 40-year-old mechanic named Ali Amrozi
without trial and outside the rules of the Geneva
bin Haji Nurhasyim, also known as Amrozi. A
Conventions.
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L aw in p rac tic e
Figure 11.7 Ali Ghufron, also Figure 11.8 Imam Samudra known as Mukhlas, was found guilty was the mastermind of the Bali and sentenced to death. bombings and the only university graduate among the bombers.
Figure 11.9 Amrozi – the smiling assassin – who did not show remorse during his trial
How the US handled Hambali had
years. He was freed on 14 June 2006 and his
2 %3% ! 2# (
negative consequences for the prosecution
conviction was overturned by Indonesia’s
Access the internet to
of the Bali bombers. First, the Americans
Supreme Court in December of the same
search for the article
refused investigators access to Hambali
year. The most important information
‘Hambali and the
to question him over the Bali bombings. It
missing from the prosecution’s case against
Guantánamo Problem’
is widely believed that Hambali’s evidence
Bashir was information that could have
by Joe Boyle. It provides
could
Abu
been obtained from Hambali that would
a point of view on the
Bakar Bashir by linking him to the attack.
have connected him to Jemaah Islamiyah.
difficult question of what
Relatives of the victims of the Bali bombings
The
to do with Hambali once
remain angry that the Unites States has not
intelligence information about Hambali from
the detention camp is
brought Hambali to trial. The possibility
other nations’ intelligence agencies. This was
closed down.
of a trial is further complicated by the fact
in stark contrast to the intelligence sharing
1 Read the article and
of his illegal treatment in the aftermath
between the AFP and the Indonesian police.
summarise the key
of his arrest. In 2009, the new American
The trials of the Bali bombers attracted
president, Barack Obama, announced that
worldwide publicity. The image that stands
2 Identify the reasons why
Guantánamo Bay would close within a
out from this period is of Amrozi repeatedly
releasing Hambali to the
year of his taking office. What will happen
smiling during his trial, which led to his being
Indonesian authorities
to Hambali? One possible answer to this
called ‘The Smiling Assassin.’ Amrozi was
may not occur.
question is that he could be released into the
charged with buying the explosives and the
3 Write a one-page report
custody of the Indonesian government and
van used in the bombing. On 8 August 2003,
on what you think should
tried there.
he was found guilty in the Bali court and
be done with Hambali
executed on 9 November 2008.
once Guantánamo Bay
have
effectively
convicted
4HETRIALS
Americans
withheld
considerable
Imam Samudra was portrayed as the field
Abu Bakar Bashir faced trial a number of
commander of the Bali bombings. He was
times for various charges related to the Bali
put on trial, found guilty on 8 August 2003
bombings. He was, however, acquitted of the
and executed on 9 November 2008. Samudra
most serious terrorism-related charges and
thanked prosecutors for giving him the death
was sentenced to four years for sedition.
sentence because, he said, it would bring
He appealed this charge and further trials
him closer to God. In his evidence, Samudra
followed. Bashir was eventually charged with
said that the Bali bombings bombing was
conspiracy and sentenced to two-and-a-half
part of jihad.
points.
is closed down. Provide reasons for your opinion.
jihad in Islam, a term meaning ‘struggle’; used without any qualifiers it is generally understood in the West to refer to a ‘holy war’ on behalf of Islam
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2%3%!2#(
2 %6) %7
Access the internet to find the article ‘Long Trail of Clues that Led to a
1 In pairs, discuss why you think
Bali Suspect’, by Jane Perlez. It details the steps taken to track down and
tensions increased between
arrest Amrozi.
Australia and Indonesia over
1 Read the article and make a list of the ‘clues’ that led to Amrozi’s arrest.
East Timor in 1999.
2 Use the internet to locate information about how the law enforcement
2 Identify who the Australian
authorities were able to track down and arrest Samudra and the other
Federal Police worked with in
Bali bombers, Ali Imron and Ali Ghufron.
Operation Alliance.
3 In different cultures, facial expressions and gestures can mean different
3 Evaluate the reasons why a
things. Locate some evidence that may suggest Amrozi’s ‘smile’ means
conviction against Abu Bakar
something other than what we in Australia may take it to mean.
Bashir was difficult to secure.
.ON LEGALRESPONSES
significant non-legal responses to the bombings highlighted the need for awareness on the part of
!USTRALIANANTI TERRORISM CAMPAIGNS
all Australians that an attack could happen here.
The Bali bombings alerted the Australian govern-
National Security office (www.nationalsecurity.
ment to the possibility that a terrorist attack could
gov.au), launched a public information campaign
occur close to or on Australian soil. One of the most
and a National Security Hotline in response to the
The Commonwealth government, through its
Bali bombings. The goal of the campaign, the first phase of which commenced in December 2002, the second in September 2004 and the third in August 2007, is to ensure that the Australian people are alert and on the lookout for any possible warning signs of a terrorist attack. Some criticised this campaign for causing unnecessary fear and creating a culture of suspicion in which people were encouraged to spy on and ‘dob in’ their neighbours. Muslim Australians reported feeling discriminated against in their day-to-day lives. In 2005, arrests were made in Sydney and Melbourne after raids by ASIO and the AFP, foiling a plot to carry out a terror attack on Australian soil. While a direct link has not been drawn between the public information campaign and these arrests, the campaign has contributed to a new awareness by Australians that they live in an age of terror.
-EMORIALSANDVICTIMSUPPORT One of the most important non-legal responses to Figure 11.10 ‘Every detail helps’: the third phase of the National Security Public Information Campaign, launched in August 2007
242
the Bali bombings was the collective grief expressed by the Australian and Indonesian people. With 88 Australians killed and many others seriously
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R EVI EW 1 1 . 3
injured, many people knew someone, or
Beach), Canberra, Melbourne and Perth.
knew someone who knew someone, who
In addition, Prince Charles opened a
had been involved in the bombings. Public
memorial globe with 202 doves carved
Commonwealth government’s
memorials act as a tribute to victims and a
into it (representing the 202 people killed)
National Security Campaign.
way to show support for victims and their
in London. The Sydney memorial is made
families.
up of three interlocking bronze shapes
of the Commonwealth
have
that represent figures offering each other
government’s National
been erected in Bali, on the former sites
support. The Melbourne memorial incor-
Security campaigns.
of both the Sari Club and Paddy’s Bar,
porates a fountain and reflecting pool that
and in Australia, in Sydney (at Coogee
incorporates 202 individual waterspouts.
public
memorials
Figure 11.11 Peace Park Memorial at the former site of the Sari Club
Figure 11.13 Bali Memorial, Sydney
2 Identify any negative features
L aw in p rac tic e
Permanent
1 Identify the benefits of the
Figure 11.12 Bali Memorial at the former site of Paddy’s Bar
Figure 11.14 The names of the 202 people killed by the Bali bombers
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3/9/09 11:02:13 AM
,EGA LRESPONSESTOTERRORIS M 4HEDEATHPENALTY The Bali bombings prompted much discussion of legal responses to terrorism generally. One controversial issue that regained attention was the morality and appropriateness of the death penalty as a means of achieving justice. The Australian federal government abolished the
2% 3%! 2#( Using the United Nations website (www.un.org) as a starting point, investigate the UN’s position on capital punishment (the death penalty). 1 Locate the Universal Declaration of Human Rights. In what ways can this document be said to be ‘against’ the death penalty? 2 Identify the role of the UN Human Rights Council on this issue. (The Human Rights Council replaced the UN Commission on Human Rights in 2006.) 3 Using both the UN website and a more general internet search, research the names of the countries yet to abolish the death penalty. What reasons have these countries offered for not doing so? 4 Write a one-page report on whether you think Australia’s inconsistent position on the death penalty in relation to the Bali bombers and the Bali Nine will harm our international reputation on this issue.
244
death penalty in 1973 and had taken a national and international stance against it, in line with United Nations policies. Some individual members of the Australian Labor Party (ALP) took their party’s stated opposition to the death penalty very seriously. Robert McClelland, Attorney-General in the
Figure 11.15 Labor Prime Minister Kevin Rudd was silent on the issue of the death penalty during the execution of the Bali bombers.
Rudd Labor government, expressed his opposition to the use of the death penalty to deal with the Bali bombers. The Australian government, however,
Refer to Chapter 11 on the Student CD
was silent on the issue when the Bali
for additional activities relating to the
bombers were sentenced to death.
death penalty.
Surveys showed that well over 50 per cent of Australians were in favour of the Bali bombers receiving the death penalty. What repercussions does this have for Australians convicted of capital offences in other countries? The Bali
)NTERNATIONALCOOPERATION TOCOMBATGLOBAL TERRORISM
Nine, on death row in Indonesia for
In an international context, the cooperative
drug trafficking, would seem to have
approach taken by the Australian and Indonesian
little reason to believe their govern-
police force and governments was highly effective.
ment would take a stand on a human
While the American-instigated ‘war on terror’ had
rights issue that directly affected
failed to destroy Al Qaeda or apprehend Osama bin
them. However, after Amrozi and his
Laden, the Australian–Indonesian effort to bring
brothers were executed on 9 Nov-
the Bali bombers to justice was a success. The
ember 2008, the Rudd government
one area in which this international cooperation
returned to publicly opposing the
may be considered a failure was in the attempts
death penalty. Human rights advo-
to convict Abu Bakar Bashir of a major role in
cates, including outspoken Julian
the bombings. As noted, this failure was largely
Burnside QC, have accused the gov-
due to the United States’ reluctance to share CIA
ernment of hypocrisy on the issue.
intelligence gained from Hambali.
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Keelty explained that together Australia
2 %3%!2 # (
term reform in the relationship between
and Indonesia were dedicated to making
Visit the website for the Jakarta
Australian and Indonesian enforcement
the region safer by addressing the threat
Centre for Law Enforcement
agencies. With a view to longer-term
of terrorism wherever it occurred. Austra-
Cooperation (JCLEC) at www.
measures, the AFP has invested heavily in
lia was committed to providing the INP
jclec.com.
Indonesia – its Jakarta office constitutes
with assistance in the areas of counter-
1 What activities are undertaken
the second largest deployment of AFP
terrorism, intelligence and forensics.
officers in a foreign country. From here,
2 Go to the Australian section
AFP agents can be deployed to any trouble spot in the region. The AFP established the Jakarta Regional Cooperation Team (JRCT) to assist the Indonesian National Police in their investigations into the Bali bombings and the later bombing of the Australian embassy in 2004. The AFP has
by the Centre? of the ‘Useful links’ web page.
Refer to Chapter 11 on the Student CD for additional activities relating to international cooperation in the aftermath of the Bali bombings.
What information can be accessed from here? 3 Discuss how the Centre’s activities assist in the fight against terrorism in our region.
L aw in p rac tic e
There has also been substantial long-
also helped develop the Jakarta Centre for Law Enforcement Cooperation (JCLEC) to augment the Indonesian law enforcement agencies’ ability to deal with terrorism, drug trafficking and people smuggling.
2 %6) %7
Over 2000 Indonesian police have now
1 Why do you think the Australian federal government
completed programs offered by JCLEC. The cooperation between the Indonesian National Police (INP) and the AFP culminated in the signing of a memorandum of understanding in 2002 and a
was silent on the issue of the death penalty when it came to the Bali bombers? 2 What was the accusation of Julian Burnside, QC, against the federal government? Why? 3 Identify the ways in which the Australian Federal
visit to Australia by the Head of the INP
Police has cooperated with Indonesian law
in March 2003. AFP Commissioner Mick
enforcement authorities.
Figure 11.16 Australian Federal Police Commissioner Mick Keelty was in charge of the AFP at the time of the Bali bombings.
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!NTI TERRORISMMEASURES IN!USTRALIA
with Security Council decisions relating to terrorism and the Commonwealth’s ability to freeze the assets of certain parties.
A major initiative that resulted from September 11
s Anti-Terrorism Act 2004 (Cth)
and the Bali bombings was the implementation
s Anti-Terrorism Act (No. 2) 2005 (Cth).
of anti-terrorism legislation in Australia and a
Australia had already been a signatory to a
strengthening of the enforcement agencies respon-
number of international treaties that deal with
sible for homeland security. A number of terrorism-
terrorism. Some key treaties are:
related statutes were enacted by the Australian
s International Convention for the Suppression of
government to deal with the perceived threat of a
s International Convention for the Suppression of
terrorist attack on Australian soil. A few of the key legislative changes were contained in the following enactments:
Financing of Terrorism (1999) More
s Suppression of the Financing of Terrorism Act 2002 (Cth)
recently,
Australia
has
signed
the
International Convention for the Suppression of Acts of Terrorism (2005).
s Border Security Legislation Amendment Act 2002
Since the Bali bombings, law enforcement
(Cth)
authorities have been on high alert to counter any
This Act amended legislation including the
attempted terrorist attack on Australian soil. As of
Customs Act 1901 (Cth) with respect to restricted
2009 there has been no successful terrorist attack
areas; passengers, goods and mail in transit
on Australian soil. However, there have been a
through Australia; airlines and other matters.
number of high-profile arrests and cases arising
s Telecommunications
(Interception)
Legislation
out of terrorism-related charges. These include: s Zaky Mallah was the first person charged under
Amendment Act 2002 (Cth) This Act amended the Telecommunications
the 2002 legislation. In the NSW Supreme
(Interception) Act 1979 (Cth) and the Australian
Court in 2005 he was found not guilty on two
Security Intelligence Organisation Act 1979 (Cth)
charges of preparing for a terrorist act when
(‘ASIO Act’).
a jury found he had not planned to kill ASIO
s Australian
Security
Intelligence
Organisation
officers in a suicide mission: R v Mallah [2005]
Legislation Amendment (Terrorism) Act 2003 (Cth)
NSWSC 358. He pleaded guilty to a charge of
This Act amended the ASIO Act 1979 (Cth), the
threatening to kill a Commonwealth officer and
Intelligence Services Act 2001 (Cth), and the
was jailed for two-and-a-half years: R v Mallah
Telecommunications (Interception) Act 1979 (Cth).
[2005] NSWSC 317.
s Criminal Code Amendment (Terrorism) Act 2003
s Joseph Terrence Thomas, nicknamed ‘Jihad
(Cth)
Jack’ by the media, was arrested in 2004. In
This Act amended the Criminal Code 1995 (Cth)
R v Thomas [2006] VSCA 165, his appeal was
and other legislation.
heard by the Victorian Supreme Court, Court of
s Charter of the United Nations Amendment Act
246
Terrorist Bombings (1997)
Appeal. Thomas had been found guilty in the
2002 (Cth)
Supreme Court of Victoria of receiving funds
This Act amended the Charter of the United Nations
from a terrorist organisation and possessing
Act 1945 (Cth), which approved the Charter of
a falsified Australian passport (which he had
the United Nations and enabled Australia to
altered to hide the length of time he spent in
apply sanctions giving effect to certain decisions
Pakistan, allegedly in contact with Al Qaeda).
of the UN Security Council. (See Chapter 2 for
His counsel argued that confessions made out
information about the UN and the Security
of court are not admissible unless voluntarily
Council.) In particular, this amending Act deals
made, and that Thomas’s statements to the
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vant to the investigation of a serious terrorism
been excluded. The Court of Appeal quashed
offence. The union expressed concern that these
the convictions and ordered a later retrial.
powers could be used to demand any confidential
s Faheem Khalid Lodhi, arrested in 2006, was
information obtained for the purpose of articles or
the first person to be convicted of preparing
broadcasts, including sources’ names and details,
for a terrorist act. He was also found guilty on
and could thus undermine journalists’ ability to do
two other charges and sentenced to 20 years’
their job properly.
imprisonment, with a 15-year non-parole period: R v Lodhi [2006] NSWSC 691.
L aw in p rac tic e
AFP, without a lawyer present, should have
Because of such provisions, some have argued that the anti-terror laws point to the need for an
s Abdul Nacer Benbrika was arrested in 2006,
Australian bill of rights. As discussed in Chapter 6,
with 21 other people in NSW and Victoria. In his
one argument against a bill of rights is that it is
trial before the Supreme Court of Victoria, he
not needed in Australia because rights are already
was found guilty of the charge of being a leader
protected by existing statutes, and these statutes
of a terrorist cell: R v Benbrika [2007] VSC 261.
have been passed by a responsible legislature that has the best interests of the nation in mind.
#RITICISMS
Another argument against a bill of rights is that it
Some of the legislation passed by Australia,
would lead to the courts becoming ‘too political’
like that of some other countries including the
in their efforts to uphold individual rights. But if
UK and the US, has been criticised as giving
parliament can’t be trusted to preserve individual
powers to the executive government that are far
freedoms in the laws it enacts, then not only
too great. In particular, sections 23CA, 23CB and
does review of statutes by courts become more
23CD of the Crimes Act 1914 (Cth) introduced by
urgent, but it might also be necessary to enshrine
the Anti-Terrorism Act 2004 (Cth) have increased
those freedoms in a bill of rights that cannot be
individuals’ risk of being detained or imprisoned
overridden by legislation.
without evidence of their guilt being presented or proved in court. Laws permitting detention without charge conflict with Article 9(1) of the
Co nc l u s io n
International Covenant on Civil and Political Rights.
The Bali bombings showed Australia that they are
The ASIO Amendment (Terrorism) Act 2003 (Cth)
not immune to global terrorism. Unlike the ‘war
introduced new offences relating to involvement
on terror’ waged by the United States, the joint
with terrorist organisations. The definition of
Indonesian–Australian response to the 2002 terror-
‘terrorist act’ is extremely wide, resulting in many
ist attack has seen the conviction of those tried
innocent organisations potentially being classed
and found responsible. Furthermore, Australia has
as terrorist: for example, a group that supports
gained a willing partner in the region with which to
people who participate in political protests
combat terrorism and illegal drug trade.
where the police are . It also places the onus on a
Domestically, the Bali attack has led to the intro-
defendant to show that he or she was not reckless
duction of anti-terrorism legislation giving Austra-
about whether an organisation was one of those
lian law enforcement agencies greater powers to
banned by the legislation.
deal with the threat of a terrorist attack on Austra-
The Anti-Terrorism Act 2005 (Cth) alarmed
lian soil. The new legislation has attracted heavy
the Australian journalists’ union, the Media,
criticism from legal scholars and others, who have
Entertainment and Arts Alliance. Schedule 6 of
argued that it undermines key legal rights. It has
this Act gave AFP officers the power to request
prompted much debate about how best to protect
in writing that a person produce documents, if
Australia from terrorism outside and inside our
the officer considers that the documents are rele-
borders, while preserving fundamental freedoms.
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Ch a p te r s u m m a ry M u lt i p le - c hoi ce q ues ti ons 248
s The attacks on the World Trade Center and the Pentagon on 11 September 2001 (9/11) mark the beginning of terrorism as a global phenomenon. s The Bali bombings was carried out by Indonesian Islamic extremists on 12 October 2002. Bombs were exploded at Paddy’s Bar and the Sari Club, both popular with Australian tourists. s While no group took immediate responsibility for the bombing, the radical Islamic association, Jemaah Islamiyah, was suspected. s Amrozi, Imam Samudra and Mukhlas stood trial for the Bali bombings and were found guilty. They were sentenced to death by firing squad and executed in November 2008.
s Non-legal responses include the establishment of anti-terrorism media campaigns and the establishment of memorials to the victims of the bombings. s The Bali bombings revived debate about the death penalty. s The Bali bombings saw the introduction of Australian anti-terrorism legislation and the strengthening of the enforcement agencies responsible for homeland security. s This legislation has come under criticism by those who believe it jeopardises civil liberties and key legal rights.
Which of the following is NOT true of terrorism? A It can be utilised by fundamentalist religious groups or political groups. B It can be constituted by a threat of violence directed at a population in order to induce a government to change its policies. C It is intended to cause death, not fear. D It was used prior to 2001. Jemaah Islamiyah was: A a peaceful Islamic organisation B a foreign terrorist organisation that established a branch in Indonesia C under suspicion from the CIA for having links with Al Qaeda well before the Bali bombings D the name of the Indonesian counterterrorism force Which of the following alleged suspects responsible for the Bali bombings ended up walking free? A Iman Samudra B Abu Bakar Bashir C Amrozi D Ali Ghufron
Which of the following was not a result of Australian–Indonesian cooperation since the Bali bombings? A Australian police involved in the identification of victims of the Bali bombings B the establishment of the Australian Federal Police C the establishment of the Jakarta Regional Cooperation Team D the establishment of the Jakarta Centre for Law Enforcement Cooperation Which of the following types of provision was contained in the anti-terrorism legislation passed by the Commonwealth after the Bali bombings? A detention of persons suspected of terrorism offences for the purpose of investigation B detention of illegal immigrants from countries known to harbour terrorists C immunity of anti-terrorism legislation from judicial review D immunity of any Commonwealth employee from prosecution
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L aw in p rac tic e
Ch a p te r s u m m a ry ta s k s Top i c revi ew
Outline the situation regarding global terrorism before the Bali bombings. What is the ‘war on terror’? What was known about Jemaah Islamiyah before the Bali bombings? Explain the connection between Hambali and the Bali bombings. Who was Abu Bakar Bashir and why was he a suspect? Why are good relations between Australia and Indonesia important from the Australian government’s point of view?
Who were the main suspects arrested for the Bali bombings? What was controversial about the trial of Abu Bakar Bashir? Why was the Australian government’s policy towards the death penalty controversial? What key changes in anti-terrorism legislation have occurred in Australia since the Bali bombings?
EX T EN DED R ES PON S E
Discuss the anti-terror legislation, with reference to the arguments for and against a bill of rights. Outline how the Australian and Indonesian governments have cooperated since the Bali bombings. Outline the key stages in the investigation of the Bali bombings. Contrast the ‘war on terror’ and the ‘rule of law’ approaches taken in the fight against terrorism. Describe the Australian government’s policy towards the death penalty.
Marking criteria for the extended response questions can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your response.
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A r e a 2 : Eve n t s w h i c h h i g h l i g h t l e g a l i s s u e s
CHAPTER 12
k ey t er m s / v oc ab u l a r y
c hap ter ob j e cti ve s
The Port Arthur massacre
250
In this chapter, students will: s describe the key features of Australia’s courts and parliaments s identify the relevant legal terminology in investigating and discussing case and statute law s evaluate the effectiveness of Australia’s legal system in achieving reform of the gun laws s investigate the relationship between society and the legal system s recognise differing perspectives on issues related to the reform of gun laws s locate quality information from authoritative sources using the internet.
conspiracy theories homicide indictment massacre on remand suicide
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L aw in p rac tic e
rel ev ant l aw SIGNIFIC AN T C AS ES
R v Bryant (Supreme Court of Tasmania, Cox CJ, 22 Nov 1996)
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Int roduc t ion
massacre the intentional killing of a large number of people
On Sunday, 28 April 1996, a young Tasmanian
in society. Other critics even suggested that a
man called Martin Bryant ate a meal on the deck
conspiracy was in play and that the massacre had
of the Broad Arrow Café located at the Port Arthur
been orchestrated as a catalyst for law reform.
historical site. When he was finished he entered
The swift response of the Australian legal system
the café, took a rifle from his bag and started
to the problem of automatic weapons engendered
indiscriminately shooting. He then moved to the
enormous international interest, winning both
gift shop and then on to the car park, where he
praise and condemnation. In the United States,
pulled out an automatic weapon, firing at the
anti-gun coalitions took heart and redoubled their
people there. Driving up the road, he continued
efforts towards reform of gun laws, while leaders
shooting. By the time he was finished he had killed
in the gun lobby thundered out warnings that the
35 people.
United States government might try to do the
The horrific massacre at Port Arthur sent
same as Australia.
shock waves around the nation. Mass murder on
The effectiveness of gun law reform in Australia
such a scale was something Australians had never
in the wake of the Port Arthur massacre stands in
experienced before. The Port Arthur massacre also
stark contrast to the failure thus far in the United
set in motion a chain of events that eventually led
States. In an international context, it also contrasts
to a complete reform of Australia’s gun laws. This
with the failure to achieve an international
reform revealed a significant division in Australian
agreement on controlling the trade in small arms.
society between those for and against gun control.
Most of the small arms available around the world
Not everyone agreed with the reforms, or saw gun
to every armed group, militia or criminal are used
control as a solution to the incidence of violence
to maim, injure or kill innocent civilians.
4 H E 0O R T ! R T H U R M A SS A C RE 4HEEVENTS
Port Arthur, arriving at about 1.10 p.m. He parked his car and entered the Broad Arrow Café, where
The facts of the Port Arthur massacre reveal the
he purchased a meal and ate it on the deck. After
deliberate and intentional nature of Martin Bryant’s
eating, Bryant returned the tray and returned to
crimes. On the morning of the massacre Martin
his table where he pulled an AR-15 semi-automatic
Bryant left his home in Hobart and drove to Port
rifle from his bag. Entering the café, he began
Arthur, approximately one hour’s drive to the east.
systematically shooting people at close range.
Port Arthur is one of Australia’s most significant
He moved into the gift shop and did the same.
historic sites, as it was the site of one of Australia’s
Returning to his bag for additional ammunition,
most notorious convict settlements in the early
he reloaded and returned to shoot the people in
1800s. As was common, on the day in question
the gift shop who had taken cover behind tables
Port Arthur was overflowing with tourists.
and furniture. In the first 90 seconds, 20 people
On his drive to Port Arthur that day Martin
252
had been killed and 12 were injured.
Bryant stopped off at a guesthouse called Seascape
Bryant continued into the car park behind the
Cottage, where he entered and killed the owners,
café. People could hear the commotion and had
David and Noelene Martin. Bryant then drove to
taken cover behind the buses. He shot and killed
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L aw in p rac tic e Figure 12.1 The Penitentiary at Port Arthur, near where Bryant went on his killing rampage
another four people, wounding others. Bryant
Hobart. An 18-hour stand-off ensued because
continued shooting people on the grounds of the
Bryant claimed he had hostages. The following day,
historic site, then got into his car and drove past
Bryant set fire to the house, taunting the police to
the toll booth and onto the main road. Before
come in and get him. Eventually, Bryant ran from
exiting, he had killed seven more people, including
the house with his clothes alight and was captured
Nanette Mikac and her two young daughters,
by police. He was arrested and taken to hospital
Madeline and Alannah, aged three and six. Bryant
under police guard.
chased Alannah behind a tree in order to kill her.
During the initial period of his police question-
Bryant then drove up the main road to a service
ing, Bryant admitted to hijacking the BMW car but
station located at a General Store. He used the
denied having shot anyone. He also stated that
BMW he was driving – having killed the driver
he had not visited Port Arthur that day. Bryant
and passenger and stolen it – to block a Toyota
also claimed that the guns found by police were
Corolla from leaving the pump area. He forced the
not his. On 20 April, during a bedside hearing in
male occupant into the boot of the BMW, shot the
hospital where he was being held because of his
female occupant of the Corolla, dragged her body
burns from the fire, Bryant was charged with just
out of the car. got into the driver’s seat of the BMW
one murder. Police said additional charges would
and took off down the road with the male hostage
follow. On 22 May, Bryant appeared via a video
locked in the boot. A police officer arrived soon
link from Risdon Prison to the Magistrates’ Court
after and went in chase of Bryant a few minutes
for a remand hearing.
later.
During the following weeks, the police inves-
Bryant returned to the Seascape guesthouse
tigated all the events of the day, which resulted
where he had begun his murderous killing spree
in the final charges being laid against him: 35
earlier that morning. At the house he took a hostage
counts of murder, 20 of attempted murder, four
inside and set fire to the stolen BMW. At around
of aggravated assault, eight of wounding, three of
2 p.m. police officers arrived but were forced to
causing grievous bodily harm, one of arson and
take shelter for a few hours in a ditch while Bryant
one of unlawfully setting fire to property.
fired on them with an automatic weapon. At 9 p.m.
Because of the magnitude of the killings, in a
a Special Operations police team arrived from
place popular with Australian and international
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Figure 12.2 People gather to pay tribute to the victims who died in the Broad Arrow Café during the Port Arthur massacre.
tourists alike, the Port Arthur massacre attracted considerable media attention and debate. There was interest also in Bryant himself. What kind
254
)NDICTMENTAND SENTENCING
of person would do this? Was he of sound mind?
On 5 July 1996, a total of 72 criminal charges were
Those who knew Bryant were questioned by
filed against Martin Bryant in the Supreme Court
journalists eager to paint a picture for the public
of Tasmania, in Hobart. Bryant did not enter a plea
of who Martin Bryant was. A number of conflicting
to any of these charges.
stories emerged. Distant relatives provided an
The police obtained 551 statements from
album full of photographs. Two of Bryant’s ex-
witnesses in their investigations into the events of
girlfriends provided some more. On 30 April the
that day in Port Arthur. In September 1996, Bryant’s
first photos of Bryant appeared on the front pages
lawyer convinced him to plead guilty, and Bryant
of the nation’s press. The Australian newspaper
was convicted on 13 November 1996 of an un-
enhanced a photograph of Bryant that exaggerated
precedented list of crimes. The judge commented
the whiteness of his eyes to give him an eerie,
that he found it difficult to imagine a more chilling
spaced-out look. Debate about Bryant’s early life,
catalogue of crimes that were carried out in a
history of gun use, state of mind and motivations
coldly premeditated way, yet whose victims were
remain today, as does curiosity about his life in
selected randomly. The judge remarked on the
prison.
continuing effects of the killings on survivors, the
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families and friends of those whom he had killed,
2 %3%!2 #(
the eyewitnesses, and the Port Arthur workers,
Read the sentencing report in R v Bryant and write a
ambulance officers and police officers who had to
report that addresses the following questions.
cope with the injured and dead.
1 What comments did the judge make about Martin
sentences of life imprisonment without parole for
Bryant’s intellectual ability and mental health? 2 Evaluate whether the judge’s observations about
the murders, plus 21 years for each of the other
Bryant’s upbringing, his social isolation, his intellectual
counts in the indictment.
ability and his mental health had any effect on the
L aw in p rac tic e
On 22 November 1996, Bryant received 35
sentence. 3 What comment did the judge make about remorse on Refer to Chapter 12 on the Student CD for information relating to R v Bryant (Supreme Court of Tasmania, Cox CJ, 22 Nov 1996).
the part of Bryant? 4 What comment did the judge make about Bryant having pleaded guilty? Did this affect Bryant’s sentence? 5 What comments did the judge make in weighing up
)MPRISONMENT After his arrest, Bryant was held in hospital under
Bryant’s crime with the mitigating factors such as his upbringing, social isolation, intellectual capacity and mental state? 6 What was the final sentence?
police guard while he was treated for his burns. While on remand for seven months until the
indictment information presented for the prosecution of one or more criminal offences; a formal written charge
conclusion of his trial, Bryant was held in nearsolitary confinement in a specially built cell at the medium- to maximum-security Risdon Prison. In 1997 Martin Bryant began his formal prison
on remand (of an accused) in custody pending and/ or during his or her trial
sentence at the old Risdon prison hospital and became one of its most notorious inmates. He spent most of his time up to 2006 alone in his cell. Though the prison authorities did not consider Bryant to be mentally ill, they held the view that the prison hospital was the safest place for him because he was the most hated prisoner among the inmates. Apparently, he had been the target of
Figure 12.3 Who is Martin Bryant?
a number of assaults and many of the inmates had made death threats against him. In 2006, the Tasmanian government moved
Some relatives and friends of the slain Port
Bryant into the newly constructed Wilfred Lopes
Arthur victims were outraged that Bryant would
Centre, a mental health facility a few hundred
be serving his sentence in such a facility. First,
metres from the prison. There are no guards
they objected because they felt they should have
inside the 35-bed unit, only nurses, doctors and
been told of the move prior to its occurrence.
support staff, and most inmates are not confined
Secondly, they believed that it was inappro-
to cells but free to wander around the complex.
priate for someone who had not been declared
The centre was substantially a hospital with a
insane at the time of conviction to be hospitalised.
therapeutic environment.
The previous year, the state’s chief forensic
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Figure 12.4 Bryant’s move from maximum security at Risdon Prison (above) to a mental health facility angered survivors and family members of the victims of the Port Arthur massacre.
psychiatrist, Dr John Crawshaw, had stated that
Prison. Bryant has been transferred back to
Bryant did not meet the criteria for admission to
maximum security Risdon Prison on at least one
the Wilfred Lopes Centre.
occasion, in response to the public outcry about
Their biggest objection, however, was the idea
his being housed in the Wilfred Lopes Centre,
that Bryant would be free to move around hospital
Bryant has attempted suicide a number of
freely when they believed that he should be
times during his incarceration. As of May 2009, he
confined to a prison cell for the rest of his life.
was being held at the Wilfred Lopes Centre, but in
In a leaked letter from Tasmania’s Director
isolation.
of Prisons, Graeme Barber, to Dr Crawshaw, the reasons for transferring Bryant to the Wilfred Lopes Centre were stated as concerns for Bryant’s
256
Motive
health, well-being and safety, and the need to
Since the day of the Port Arthur massacre there
protect other inmates. Those opposed to the move
has been speculation about Bryant’s motivation
questioned the validity of these concerns, given
for the killing spree, focusing in large part on his
the recent $90 million redevelopment of Risdon
childhood and his sanity. In 2006, Bryant’s lawyer,
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2 %6 ) %7
about his former client. Extracts were published
1 From the information above create a
in the Bulletin magazine, along with transcripts of
timeline of events on the day of the Port
conversations between Bryant and Avery, school
Arthur massacre until Bryant’s arrest.
reports, and psychiatric assessments. Avery’s
2 Do you think people will ever know why
behaviour and the magazine’s publication of the
Martin Bryant did what he did? Why are a
material were condemned by the legal community
murderer’s motives a continuing source
and many in the media as both professionally
of fascination?
questionable and inconsiderate of the feelings of
3 What are the arguments for and against
victims and their families. In 2009, journalists
Bryant serving part of his sentence in a
Robert Wainwright and Paola Totaro published
mental health facility rather than a prison?
Born or bred?: Martin Bryant, the making of a mass
What facts does the answer depend on?
murderer, again delving into his past.
Discuss in small groups.
One of the ideas about Bryant’s motives, put
L aw in p rac tic e
John Avery, was reported to be writing a book
4 If a convicted murderer is found to be sane,
forward by the defence psychiatrist, Paul Mullen,
what are the aims of the criminal sentence
was that Bryant was inspired by a lone gunman’s
imposed? Justify your answer.
massacre of 16 children and one adult on 13 March 2006 in the Scottish town of Dunblane. Other speculation has focused on Bryant’s below-normal
2 %6 ) %7
intellect and resulting social isolation and anger,
1 Identify the various conspiracy claims that
desire for attention, and a long-term grudge against
have surrounded the Port Arthur massacre.
his first victims, who had bought the Seascape
2 How valid do you think these claims are?
property that he had wanted to buy.
3 In what ways do these claims dishonour the memory of those who died in the massacre?
#ONSPIRACYCLAIMS From the beginning, conspiracy theories have
2 %3%!2 #(
surrounded the Port Arthur massacre. These
The articles ‘Bryant is an Overweight Zombie’
suggest that the massacre was actually carried out
and ‘Inside the Mind of a Mass Murderer’ both
by special operatives who framed Bryant. According
attempt to provide some insight into who
to some of the proponents of conspiracy theories,
Martin Bryant is and explain his motivations.
particularly those that are strong opponents of
Answer the questions below.
gun control, the purpose of the massacre was to
1 How does Bryant’s mother describe her
provide a platform for the federal government to bring about gun control law reform. A more recent conspiracy theory is that the Port Arthur massacre was a plot to make it easier for terrorists to take over Australia if all of our guns have been confiscated. These theories do not enjoy any credibility in legal or scholarly circles. Their merit may be at least
conspiracy theories speculation that there is a cover-up of the information surrounding a significant event by government or other authorities
son’s imprisonment at Risdon Prison? 2 Do the comments made by the psychologist and defence lawyer shed any light on what motivated Bryant? 3 Is there any way to assess whether Bryant feels any guilt for his actions from the information in these articles? 4 Why is Bryant’s decision to enter a guilty
partly determined by noting which organisations
plea considered a controversial one?
hold them. For instance, the Holocaust-denying
5 Does speculation about a murderer’s
Australian-based Adelaide Institute continues to
motivations serve any useful purpose?
peddle the conspiracy line.
Discuss.
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- E C H A N I S M S F O R A C H I EV I N G J U S T I CE A F T E R T H E 0O R T ! R T H U R M A SS A C RE ,EGALRESPONSES
in a total of 32 deaths. Each of these incidents was premeditated and all were carried out by people
'UNLAWREFORMIN!USTRALIA BEFORE
who legally owned guns. The most well-known of
By the 1980s there were approximately four
Massacre and the Queen Street Massacre. The
million privately owned guns in Australia and
Victorian government acted swiftly to introduce
about 700 gun deaths each year. These guns were
tougher gun laws. This action was opposed by
owned primarily for hunting and by farmers, who
the Sporting Shooters Association of Australia,
used them to kill pests such as rabbits and feral
an organisation formed to promote sports such
animals. The majority of gun deaths occurred due
as target shooting and hunting, and which also
to misuse of rifle-type guns rather than handguns.
represents the interests of gun owners. The Asso-
The gun laws were fairly weak and varied greatly
ciation organised a protest march by 27 000 of
among the states and territories.
its members through the streets of Melbourne.
these occurred in Melbourne: the Hoddle Street
The gun debate in Australia started in Victoria
However, public sentiment against weak gun laws
after two separate incidents in which 14-year-old
meant that the Victorian government persevered
girls were accidentally killed by sporting shooters.
with its reforms.
As a result, the Victorian government introduced
These state reforms were complemented at the
a shooter’s licence, which, while fairly weak by
federal level by the Hawke government’s estab-
today’s standards, was nevertheless the first
lishment of the National Committee on Violence,
serious attempt to place some control on guns.
which produced a report in 1990 containing 30
Then in 1987, Australia experienced six gun massacres over the course of the year that resulted
recommendations.
Among
these
recommen-
dations was registration of high-powered rifles. The reforms that followed represented a significant step towards gun control in Australia. In 1991, a gunman shot six people in a shopping mall at Strathfield, NSW with an ex-military semi-automatic rifle that he had easily obtained. Widespread outrage and debate followed. In 1992, the New South Wales government introduced tougher gun laws. Many pro-gun groups bitterly opposed these laws, particularly since prior to the Strathfield massacre the NSW Liberal government had been ready to introduce softer laws. The tougher gun laws led to the formation of the Shooters’ Party in NSW. The Shooters’ Party has had a seat in the NSW upper house since then. Also in reaction to the tougher laws, the Sporting
Figure 12.5 The Sporting Shooters Association of Australia opposed gun reforms.
Shooters Association of Australia (SSAA) began looking to the National Rifle Association (NRA) in the United States for ideas on how to counter the
258
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tougher legal regime for guns that was taking root in Australia. The NRA is a powerful lobby group with the goal of promoting firearm ownership rights, relying on a broad interpretation of the Second Amendment of the US Constitution, which
L aw in p rac tic e
gives people the right to keep and bear arms. Overall, the effect of the gun massacres that occurred in Australia between 1987 and 1991 was the development of public concern about guns, which coincided with leaders who were willing to enact the necessary legal reforms to put the nation on the path of a sensible gun control regime.
'UNLAWREFORMAFTERTHE0ORT !RTHURMASSACRE By the 1990s, Tasmania was the odd state out in terms of gun law reform. This made it quite easy for Martin Bryant to purchase the guns that he
Figure 12.6 When John Howard spoke to a hostile rally of pro-gun enthusiasts he was wearing a bullet-proof vest.
used to kill 35 people. In response to the public outcry about gun control after the massacre, Prime Minister John Howard initiated a discussion on tougher gun law reforms. He was backed by
.ON LEGAL RESPONSES
2 %6 ) %7 1 Make a list of Australian gun law reforms from 1980
Deputy Prime Minister Tim Fisher. By the end of ment signed the National Agreement on Gun Laws.
!LANNAHAND-ADELINE Foundation
This agreement stated that:
The deaths of 35 people at the
s gun ownership is a privilege and not a right
hands of Martin Bryant shocked
s semi-automatic weapons must be strictly
Austra lians. Of the stories that
1997, the state governments and federal govern-
to 1997. 2 Investigate the gun massacres that occurred in Australia in 1987. 3 Evaluate the effectiveness
emerged from that day, the murder
of the government’s
s all guns must be registered
of Nanette Mikac and her two young
response to public concern
s guns must be stored securely
daughters, Alannah and Madeline,
about gun use.
s there must be a 28-day cooling-off period when
aged 6 and 3 respectively, were
controlled
buying guns.
particularly devastating. Australians
Such proposals seemed sensible to the average
were reminded of the fragile nature of human life
Australian; however, some National Party parlia-
and the destructive potential of guns.
mentarians and pro-gun lobby groups, such as
Walter Mikac lost his wife and daughters. These
the SSAA, were horrified and did everything they
events had a profound effect on another Australian
could to stop the proposed new laws. It was in this
father of two young girls, Phil West, who along with
context that conspiracy theories about the Port
a small group of volunteers established the Alannah
Arthur massacre sprouted. Some gun enthusiasts
and Madeline Foundation. The Foundation’s goal
began to argue that the Port Arthur massacre was
is to keep children safe from violence. It does
a government conspiracy and that Martin Bryant
not receive government funding, but relies on
was set up, all with the aim of using it as an excuse
fund-raising events, private grants and individual
to take guns away from all the law-abiding gun
donations to continue its work. The Foundation
owners in the country.
runs programs to assist with the recovery of
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children who have witnessed or experienced
federal, state and local governments. HRH Crown
violence, and to prevent violence and bullying in
Princess Mary of Denmark is the International
schools. It also acts as a children’s advocate before
Patron of the Alannah and Madeline Foundation.
2ESPONSIVENESSOFTHELEGALSYSTEM TOTHE0ORT!RTHURMASSACRE suicide the intentional taking of one’s own life homicide the act of killing another human being
'UNLAWREFORMIN Australia
year from suicides, unintentional killings and homicides had dropped dramatically. In the 1980s the deaths per year from gun-related causes
From 1998, Australia experienced a marked
averaged 700. By 1999 they were around 300 and
decrease in gun deaths when compared to the
by 2003, gun-related deaths had dropped to 290
1970s and 1980s. Handguns, however, appeared
per year. This trend has continued since.
as a new menace in 2002. In a shooting that
While Australia has directly addressed the
occurred at Monash University in Victoria that
problem of gun deaths, other countries, such as
year, two people were killed and five injured
the United States, have not been as effective in
when a student, who was a licensed pistol shooter,
meeting this challenge. Political leaders in the
fired handguns in an econometrics class, killing
US have not been successful in countering the
two students and injuring four students and a
strong pro-gun culture supported by the extremely
lecturer.
effective lobbying of the NRA. Gun massacres
After the Monash shootings the Australian Crime Commission was formed. It is a statutory body
remain a feature of life in the US, and the sale of firearms continues to grow every year.
that, in partnership with other law enforcement agencies, develops strategies for dealing with serious and organised crime. One of the first things on its agenda was illegal trafficking in handguns. It
Refer to Chapter 12 on the Student CD
had become apparent that there was an increase
for information relating to death tolls
in illegal handgun use.
of the world’s worst shootings.
While handguns were emerging as the new
l eg a l l i n ks
threat in crime, the total number of deaths per
260
A paper written in 2000, titled ‘Australia’s
argued that this led to a more rational
New Gun Control Philosophy: Public
philosophy of gun control, which is more
Health Paramount’, by Rebecca Peters
effective in reducing the number of
and Roland Browne in The Drawing Board:
firearm-related deaths.
An Australian Review of Public Affairs,
This can be downloaded from
argued that Australia took a public health
the following web address: www.
approach to gun law reform instead of
australianreview.net/journal/v1/n2/
a criminal justice approach. The authors
peters_browne.html
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700 600 500
L aw in p rac tic e
Total T
400
Suicide S
300
Homicide H 200
A Accident
100
Other O
0 1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
Figure 12.7 Firearm related deaths in Australia, 1991–2001
2%3 % ! 2#(
2 %3%!2 #(
2 %3%!2 # (
Read the article ‘Death tolls of the world’s
1 View the 2002 documentary
Go to the Australian Institute of
worst shootings.’ Despite Australia’s Port
Bowling for Columbine. What
Criminology website, read the
Arthur massacre holding the number one
are the main points it makes
abstract for ‘Firearm related
spot for the world’s worst single non-
about guns in the United
deaths in Australia, 1991–2001’,
wartime shooting, the United States can be
States?
www.aic.gov.au/publications/
said to have the most frequent occurrence
2 For further information
tandi2/tandi269.html, and
of shootings.
about the film and about
answer the following questions:
1 Draw up a table showing country,
the issue of guns in the
1 What has been the
gunman, location, weapons, killed and
United States, go to the
percentage decrease in
wounded.
website for the film: www.
firearm-related deaths in the
2 How does Port Arthur compare with other similar massacres? 3 Identify similarities in location,
bowlingforcolumbine.com/ 3 For further information about the issue of guns in
motivation of the killer, and the
the United States, go to the
availability of weapons.
website of the Brady Center
4 Investigate the Second Amendment to
to Prevent Gun Violence (an
the Constitution of the United States.
NGO) at www.bradycenter.
Why do you think gun law reform might
org/
be more difficult to achieve in the US in light of this clause? 5 Visit the website of the National Rifle
4 Research other media reports and academic
period 1991–2001? 2 What proportion of deaths involved males? 3 What age group has the highest risk? 4 What was the most common weapon used? 5 What other weapon has seen increased use? 6 Which accounted for the
reports about the gun issue
most deaths: homicide,
Association (NRA) at www.nra.org/. See
in the United States. What
accident or suicide? What
what information you can find about how
arguments and tactics are
are the implications of
the NRA can continue to oppose gun law
being used by those groups
this finding for health
reform even in the face of a massacre like
arguing for gun law reform?
professionals?
the one at Columbine High School.
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in particular, semi-automatic rifles and shotguns. Approximately 640 000 guns were collected under the scheme. Victoria was the state to hand in the greatest proportion of its registered weapons that were on the ‘prohibited’ list. The long-term effectiveness of this scheme has been closely monitored, with conflicting reports emerging. Some have indicated that because Australia has not had a mass gun-related shooting since Port Arthur, the buy-back scheme was a success. Other reports have indicated that the scheme has had no real effect on overall murder rates. The only area where the National Firearms Agreement – the collective name for federal and state gun reforms – may have had some impact is in suicide rates. Part of the difficulty in measuring the success of the buy-back scheme and its impact on crime rates is that 90 per cent of homicides are committed with unregistered firearms.
2 %3%!2 #( The following newspaper articles from the Sydney Morning Herald in 2006 give two different perspectives on the effectiveness of the guns buy-back scheme since 1996. Locate the following articles at www.smh. com.au and answer the questions below: s Matthew Moore, ‘Buyback has no effect on murder rate’, 24 October 2006
Figure 12.8 Guns handed in during the buyback scheme in 1997 were destroyed at scrap-metal yards.
s Don Weatherburn, ‘Study no excuse to shoot down the law’, 26 October 2006 1 Read the two articles listed above and summarise their key points.
4HEGOVERNMENT BUY BACKSCHEME
Australia on this debate by searching for ‘Recent Reports on Australian Gun
As part of the reform of gun laws and culture in
Laws’ (Wednesday 10 January 2007) on
Australia, a buy-back scheme and amnesty were
the Gun Control Australia website (www.
introduced by the Howard government in the
guncontrol.org.au).
aftermath of the Port Arthur massacre. Money was
262
2 Find the commentary of the Gun Control
3 Write a one-page report discussing
given to people who willingly handed over guns
the effectiveness of the guns buy-back
that appeared on a list of prohibited weapons –
scheme.
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2 %3%!2 #(
Search the internet to find the following
The problem of guns, or small arms as they are
articles about a tragic shooting:
known in international law, is one that plagues
s Michelle Fenech and Rebecca Senescall,
the whole world. The main problem is that too
‘Boy, 14, charged with murder over
many guns are sold (both legally and illegally)
friend’s shooting’, Camden Advertiser,
to people in poor countries characterised
8 December 2008
by civil unrest and poverty. Many of the
s ‘Man charged after Josef Cruickshank’s
thousand people killed by firearms each day
shooting death’, The Australian,
are innocent women and children. There is an
9 December 2008
attempt to establish an effective UN treaty
1 What are the implications of this shooting
on small arms, but without the United States’
for gun laws, the policing of those laws
backing, there is little chance of success.
and the education of young people?
1 Research the issue of the gun violence
2 What has been the outcome of this
around the world by going to the website
case? Locate the outcome by searching
of the International Action Network on
for further media reports and court
Small Arms (an NGO) at www.iansa.org and
transcripts.
download its report titled ‘Gun Violence:
3 Go to the Australian Institute of Criminology website (www.aic.gov.au)
L aw in p rac tic e
2% 3%!2#(
The Global Crisis’. 2 Go to the United Nations website (www.
and find out how many people die from
un.org) and find out about progress on the
accidental discharge of a firearm each year.
small arms treaty.
4 Evaluate the implications for the legal system in dealing with accidental death from firearms. Suggest legal and nonlegal ways that this type of tragedy could be minimised. For instance, is it a case of further reform of the relevant laws, greater police powers, education, or some other means?
Co nc l u s io n It can be argued that Australia’s legal system
handguns, both legal and illegal, has gained the
has been effective in dealing with the issue of
attention of our nation’s lawmakers. It seems that
deaths from firearms since tough measures were
gun-related issues are never far from resurfacing.
introduced in the aftermath of the Port Arthur
Our gun laws and enforcement measures need
massacre in 1996. The dangers posed by both
to be constantly revisited to ensure they stay
legal and illegal guns, however, are something
abreast of changing trends in the use of firearms,
that we can never become complacent about.
both nationally and internationally. This is an
Tragic accidents and suicides will continue to
issue in which there is always room for further law
occur and there will still be homicides committed
reform.
with firearms. Since 2002, the proliferation of
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Ch a p te r s u m m a ry M u lt i p le - c hoi ce q ues ti ons 264
s The Port Arthur massacre on 28 April 1996 is the worst massacre in Australian history. s The Port Arthur massacre set in motion a chain of events that led to gun reform in Australia at both state and federal levels. s The Australian government – when compared to the governments of other countries, especially the United States – can be said to have acted quickly and decisively to enact gun law reform. s Media coverage of the Port Arthur massacre was concerned with Martin Bryant’s motives and trying to understand how and why he would indiscriminately kill 35 people. s On 22 November 1996, Bryant was sentenced to 35 life sentences without the possibility of parole.
The high-powered semi-automatic weapons that Martin Bryant used on 28 April 1996 were: A imported from the United States B bought legally in Tasmania C acquired illegally D illegal under existing Commonwealth legislation Martin Bryant’s motive for his crime: A was that he had been bullied and abused as a child B was that he had a hatred of foreign tourists C was that he was insane and did not really know what he was doing D is not known for sure The most probable reason for the growth of conspiracy theories about the Port Arthur massacre is: A Australian political leaders have refused to speak publicly about the massacre. B Martin Bryant was denied natural justice. C pro-gun groups here and overseas oppose attempts by governments in Australia to toughen the laws on guns. D Martin Bryant was not capable of using a gun.
s Before 1996, gun laws varied greatly among the states and territories. The Victorian government introduced tougher laws after the Hoddle Street and Queen Street massacres. These reforms were opposed by the Sporting Shooters Association of Australia. s After the Port Arthur massacre, a National Agreement on Gun Laws was signed by state and federal governments at the end of 1997. s From 1998, Australian has experienced a decrease in gun deaths. Despite this decrease, it is difficult effectively to measure the success of the gun buy-back scheme.
The toughening of gun laws in Australia since 1996 has led to: A no change in the number of deaths from firearms each year B a doubling of the number of deaths from firearms each year C a decrease of the number of deaths from firearms each year D the elimination of all deaths from acts of homicide using a gun Achieving reforms of the gun laws in the United States is extremely difficult because: A many politicians are against making tougher laws B the NRA has enormous cultural power and political clout C arms manufacturers successfully lobby politicians against tougher laws D all of the above
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EX T EN DED R ES PON S E
Describe the massacre at Port Arthur in 1996 and outline the responses of the police, the courts and the political leaders. Discuss the controversies surrounding Martin Bryant’s sentencing and his imprisonment. Evaluate the effectiveness of the Australian legal system in dealing with the problem of gun-related deaths. Explain the difficulty of achieving reform on laws related to small arms on the global level.
L aw in p rac tic e
Ch a p te r s u m m a ry ta s k s Top i c revi ew
Summarise the events on the day of 28 April 1996 in your own words. How was Martin Bryant brought to justice? Explain why Martin Bryant has been the subject of controversy since his imprisonment. Explain why the Port Arthur massacre has generated claims of a conspiracy.
Outline some of the events that prompted gun law reform in Australia before 1996. Outline the legal responses to gun-related deaths in Australia before 1996. What was Tasmania’s attitude to gun law reform before 1996? What was the National Agreement on Guns and how did it propose to toughen up the gun laws in Australia?
If gun law reform since 1996 has seen positive results in Australia, why has the United States been unable to do the same with its gun laws?
Marking criteria for the extended response questions can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your response.
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A r e a 3 : I n d i v i d u a l s o r g r o u p s i n c o n f l i c t w i t h t h e s t a te
CHAPTER 13
ke y t e r ms
c hap ter ob j e cti ve s
Mohamed Haneef
266
In this chapter, students will: s explore legal concepts and terminology with respect to Mohamed Haneef and the law s investigate the legal system’s ability to address issues relating to Mohamed Haneef s explore the differences in the laws in relation to Mohamed Haneef s investigate the role of the law in addressing and responding to change in relation to terrorist threats s describe the legal and non-legal responses to Mohamed Haneef’s case s evaluate the effectiveness of legal and non-legal responses in achieving justice for Mohamed Haneef.
Australian Federal Police (AFP) Commonwealth Director of Public Prosecutions (CDPP) guilt by association ministerial discretion pro bono reckless separation of powers surety terrorism
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L aw in p rac tic e
rel ev ant l aw IM PORTA N T L EGIS L AT ION
Anti-Terrorism Act 2004 (Cth) Anti-Terrorism Act (No. 2) 2005 (Cth) Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Migration Act 1958 (Cth) Terrorism (Police Powers) Act 2002 (NSW) Crimes Legislation Amendment (Terrorism) Act 2004 (NSW) SIGNIFIC AN T C AS ES
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203
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! B R I E F H I S TO R Y O F T H E - O H A ME D (A NEEFC A SE The case of Dr Mohamed Haneef is one of the
attack) caused a great deal of controversy in
most highly publicised and politicised incidents
Australia and India. He was the first person
in recent Australian legal history. The facts of the
arrested and detained under the Anti-Terrorism
case and the context in which it took place are
Act (No. 2) 2005 (Cth) and the first to have his
not only interesting from a social and political
detention extended to twelve days under the Act
perspective, but also raise a number of important
without being charged with a crime.
legal issues for Australia relating to the separation
This chapter will explore the events that led
of powers, the presumption of innocence, and
to Mohamed Haneef’s arrest and detention and
guilt by association.
analyse the legal responses to his case. In order to
Dr Haneef, a medical doctor from India, first
understand these events, it is necessary to place
arrived in Australia in 2006 on a temporary skilled
them in the broader social and political context:
working visa and was employed at the Gold Coast
a post-September 11 context characterised by
Hospital in Southport, Queensland for almost a
pervasive fear of further terrorist attacks against
year before his case became international news.
Western
This
public
anxiety
Dr Haneef’s arrest and detention on 2 July 2007
motivated governments to use the full force of
on suspicion of terror-related activity (specifically
their legal systems and law enforcement agencies
in relation to the Glasgow International Airport
to tackle the terrorist threat on their doorstep.
Figure 13.1 Mohamed Haneef
268
democracies.
Figure 13.2 The attacks on 11 September 2001 caused widespread fear and fuelled the ‘War on Terror’.
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L aw in p rac tic e Figure 13.3 Terrorist attacks in London, Madrid and Bali in the wake of the September 11 attacks fuelled a ‘climate of fear’ around the world.
4ERRORISM
killing innocent civilians, they are intended to influence political events. Most people believe that
Terrorist attacks are nothing new. Throughout
political change, on either a national or international
history, individuals, political and religious organi-
level, should take place as a result of discussion,
sations have committed terrorist attacks in an
argument and negotiation, not violence.
attempt to achieve certain political and social objec-
As we saw in Chapter 11, terrorism has become
tives. The word ‘terrorism’ is often politically and
a global phenomenon. The brief list of major
emotionally charged. Terrorist acts are designed to
terrorist attacks below gives some idea of the
coerce or intimidate a government or other group
frequency and severity of attacks in the wake of
into taking a course of action it would not otherwise
11 September 2001. Not only did these events kill
take. These acts are considered particularly heinous
and injure thousands of innocent people, they also
because in addition to the crime of harming or
fuelled a ‘climate of fear’ around the world.
terrorism violence or the threat of violence, directed at an innocent group of people for the purpose of coercing another party, such as a government, into a course of action that it would not otherwise pursue
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s 12 October 2002 – Bali bombings This attack took place in the tourist district of
at Glasgow International Airport in Scotland, in the afternoon of Saturday, 30 June 2007.
Kuta on the Indonesian island of Bali, killing 202
The incident involved a Jeep Cherokee, loaded
people. Various members of Jemaah Islamiyah,
with canisters containing explosive propane gas,
a radical Islamist group, were convicted in
which was driven into glass doors at the airport
relation to the bombings.
terminal entrance. The propane canisters failed
s 11 March 2004 – Madrid bombings
to explode; however, the car was set ablaze. The
This attack took place aboard four commuter
car was prevented from entering the terminal by
trains in Madrid, Spain, killing 191 people and
security bollards that had been installed outside
wounding a further 1800. In total, 10 separate
the entrance. Although nobody was killed at the
explosions were recorded. A loose group of
scene, the car’s driver suffered severe burns
Moroccan, Syrian, and Algerian Muslims was
to 90 per cent of his body and later died, and a
suspected of having carried out the attacks. As
number of injuries were sustained by members
of May 2009, 21 people, most from north Africa,
of the public, including those who helped police
had been convicted in Spain for taking part in
detain the car’s occupants.
the attacks, and more were still being arrested.
The attack was said to be the first such terrorist
s 7 July 2005 and 21 July 2005 – London
attack to target Scotland and was linked to a failed
bombings
attack in London the previous day. The London
The 7 July attacks were a series of coordinated
attempt had involved two separate car bombs in
suicide bombings on London’s public tran-
the centre of the city, which were detected and
sport system. The bombings killed 52 people
disabled before they could explode. The Glasgow
and injured a further 700. A group of British
attack occurred only three days after Gordon
Muslims unhappy with Britain’s involvement in
Brown, a Scottish-born MP from Glasgow, was
the Iraq war was later identified as having been
appointed Prime Minister of the United Kingdom.
responsible for the attacks.
Within three days, eight people suspected of
The 21 July attacks were a second series of
involvement in the Glasgow and London incidents
four explosions on the London Underground
had been taken into custody. The two men in the
and on a bus. Fortunately, the main explosive
car at Glasgow International Airport, arrested at the
charges failed to detonate during this attack
scene, were identified as passenger Bilal Abdullah,
and no casualties were recorded.
a British-born medical doctor of Iraqi descent, and
s 1 October 2005 – second Bali bombings
driver Kafeel (‘Khalid’) Ahmed, an engineer who
These attacks occurred at two sites, Jimbaran
was born in Bangalore, India, raised in Saudi Arabia,
and Kuta, on the island of Bali. Twenty people
and was studying for a PhD at Cambridge Univer-
were killed and 129 people were injured by
sity in the UK. A suicide note left behind indicated
three suicide bombers. As with the bombings
that the two had intended to die in the attack.
in 2002, Jemaah Islamiyah are believed to be responsible for the attacks.
On 2 August 2007, Kafeel Ahmed died of the third-degree burns he sustained, while Bilal Abdullah was later found guilty in the UK of
270
'LASGOW)NTERNATIONAL !IRPORTATTACK
conspiracy to commit murder and was sentenced
Following the spate of international terrorist attacks
18 months’ jail after pleading guilty to failing to
described above, there was an attempted bombing
disclose information that could have prevented
to 32 years in prison. Kafeel’s brother, Dr Sabeel Ahmed, was also later sentenced in the UK to
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an act of terrorism. Sabeel had received an e-mail
Dr Haneef arrived in Australia with his wife on
message from Kafeel and details of his will before
11 September 2006 and commenced work at the
the attack, but was later cleared of having any
Gold Coast Hospital on 18 September, moving into
actual knowledge of the bombings.
a nearby apartment in Southport. His wife, Firdous
-OHAMED(ANEEF
she returned to India for family support during
On 2 July 2007, two days after the attack, a 27-year-
continued working at the hospital in Australia
old junior medical doctor, Dr Mohamed Haneef,
and on 26 June 2007 their daughter was born in
was arrested by the Australian Federal Police
Bangalore. Shortly afterwards a series of events
(AFP) at Brisbane Airport, on suspicion of a link to
began that would change both their lives and leave
the Glasgow International Airport attack.
a permanent mark on Australia’s legal history.
the final months of her pregnancy. Dr Haneef
Dr Haneef was the first person detained in Australia under newly introduced anti-terrorism
$ETENTIONANDALLEGATIONS
laws. His detention without charge by police
The Australian Federal Police arrested Dr Haneef
became the longest in Australia’s recent history
at Brisbane Airport on 2 July 2007, following
and the case became a cause for controversy in
information received from UK intelligence agencies
both Australia and India. Dr Haneef was eventually
that Australian police believed linked him to the
released and all charges withdrawn, but the case
Glasgow Airport attack. Some of the facts and
brought to light important questions about the
allegations that influenced the AFP’s belief were:
law and its application by both police and the
s Family relationship: Dr Haneef was a distant
Australian government, and its implications for
relative of both the driver involved in the
Australian law will continue into the future.
Glasgow International Airport attack, Kafeel
Australian Federal Police (AFP) the federal police agency of the Commonwealth of Australia, set up to enforce the federal laws and to protect the interests of Australia both domestically and internationally
L aw in p rac tic e
Arshiya, later became pregnant and in March 2007
Ahmed, and Kafeel’s brother Sabeel Ahmed,
"ACKGROUND
who at that stage was only a suspect in the
Mohamed Haneef was born in 1979 and raised
case. Dr Haneef was the brothers’ first cousin
in Mudigere, a small town surrounded by coffee
once removed – that is, they shared the same
plantations in the state of Karnataka, India.
great-grandparents.
Following his father’s death in a motor vehicle
s SIM card : During investigations into the
accident when Mohamed was 18 years old, his
Glasgow incident, UK police discovered a
family moved to Bangalore, the state capital,
mobile phone SIM card in Sabeel Ahmed’s flat,
where he completed his education and eventually
which was registered to Mohamed Haneef. Dr
attained a medical degree with first-class honours
Haneef had left the SIM card with friends in his
in 2002 from Dr B. R. Ambedkar Medical College.
old flat when he departed from the UK in 2006,
After graduation, Haneef completed his intern-
as it still contained credit. Sabeel Ahmed later
ship in India, then moved to the United Kingdom,
moved into the flat.
where he worked in a hospital at Runcorn,
One of the critical issues in the case was an
Cheshire in north-west England. After seeing an
allegation made by the AFP and Commonwealth
advertisement in the British Medical Journal, he
prosecutors that the SIM card was actually found
applied to work in Australia under Australia’s
inside the Jeep Cherokee used in the attack. This
temporary skilled worker scheme and obtained a
allegation later turned out to be false. It was
job as a medical doctor at Queensland’s Gold
revealed that UK police had originally told the
Coast Hospital.
AFP that the card was in the Jeep, but this was
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and alone in Australia after he learnt there could be a problem with his old SIM card, and wanted the support of his family. s Shared flat: In a formal court statement, the AFP claimed that Dr Haneef had told them that he had lived in the UK at his Liverpool flat with two of the suspects of the Glasgow attack. However, the record of Dr Haneef’s interview with police shows that he told them that he had lived at the Liverpool flat with several named doctors, none of whom was a suspect in the Glasgow incident. Dr Haneef had moved out of this flat before Sabeel Ahmed moved in. He had visited Cambridge on two occasions in 2004 while in the UK to stay with Kafeel Ahmed, for a total of six days. The error was not corrected by the AFP. s Contact with suspects: The AFP also alleged that Dr Haneef had been in continuing contact with both of the suspects of the Glasgow attack. Dr Haneef’s laptop was seized by police and details Figure 13.4 The SIM card given to Sabeel Ahmed was one of the key issues in the Haneef case.
of financial transactions investigated. Links between Dr Haneef and other terror suspects were also alleged, and later proved to be false. At the time of Haneef’s arrest, the Federal
later clarified. Some concerns were expressed
Police Commissioner, Mick Keelty, acknowledged
about AFP’s handling of the information.
that he ‘may have done nothing wrong and may at
s One-way ticket : When Dr Haneef was arrested
the end of the day be free to go’. Despite this, from
at Brisbane Airport he had a one-way airline
the time of his arrest to the day of his release on
ticket to Bangalore, India, paid for by his father-
27 July, Dr Haneef would spend a total of 25 days
in-law. This created a perception that he was
in detention, only then to be released without any
attempting to flee the country and may have
charge. During this time the then Federal Minister
been involved in the terrorist attacks. This
for Immigration and Citizenship, Kevin Andrews,
perception was strengthened when it was dis-
also made the controversial decision to cancel Dr
covered that Dr Haneef had received a phone
Haneef’s Australian working visa, a decision that
call from the brothers’ mother telling him that
was later appealed in the Federal Court of Australia
the police wanted to speak to him about ‘some
and overturned.
problem’ involving his SIM card. However, this is still a tenuous connection.
272
The case resulted in intense media speculation and commentary and eventually a full inquiry into
As stated by Dr Haneef in his interviews with
the affair, ordered by the Federal Attorney-General
police, there was another significant reason for
after the change in government following the 2007
his departure: he wanted to be with his wife
federal election. A timeline of all the major events
and newborn daughter, who had been born by
in the case of Dr Haneef is set out on page 273.
caesarean section only days before and was not
Details and analysis of the legal elements of the
well. It is possible that he also felt frightened
case are discussed below.
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Date
%VENT
11 September 2006
Dr Mohamed Haneef arrives in Australia with his wife, Firdous Arshiya, under a temporary skilled working visa.
18 September 2006
Dr Haneef commences work as a registrar at the Gold Coast Hospital in Queensland.
26 June 2007
Dr Haneef’s wife, Firdous Arshiya, gives birth to their first child in Bangalore, India.
29 June 2007
An attempted terrorist attack in London fails after car bombs intended to explode are discovered and disabled.
30 June 2007
Attack at Glasgow International Airport; a distant relative of Dr Haneef’s, Khafeel Ahmed, is identified as the driver.
2 July 2007
Dr Haneef is arrested by the AFP at Brisbane Airport about to board a plane to Bangalore, India. Dr Haneef is detained under Australia’s new anti-terrorism laws pending further investigation.
14 July 2007
AFP formally charges Dr Haneef for the offence of ‘recklessly providing support to a terrorist organisation’, punishable by up to 15 years’ imprisonment.
16 July 2007
18 July 2007
27 July 2007
29 July 2007 21 August 2007 21 December 2007 13 March 2008 21 November 2008 23 December 2008
Brisbane Magistrates’ Court grants Dr Haneef bail under ‘exceptional circumstances’, with bail set at $10 000. Federal Minister for Immigration and Citizenship Kevin Andrews decides to cancel Mohamed Haneef’s visa. Queensland Department of Health suspends Dr Haneef’s employment without pay pending the outcome of the charges. Dr Haneef remains in custody without exercising his bail. Dr Haneef’s barrister, Stephem Keim SC, confirms that he leaked a transcript of the initial AFP interview with Dr Haneef to counter a campaign of damaging allegations by law enforcement agencies. Commonwealth Director of Public Prosecutions withdraws the charge after the $3.2 million investigation against Dr Haneef, citing ‘no reasonable prospect of a conviction’. This followed an admission by the AFP the week before that the SIM card was not found at the scene of the Glasgow attack as previously alleged. Dr Haneef is released from custody.
L aw in p rac tic e
M OHAM ED H AN EEF : A T IMEL IN E OF EVENTS
2 %6) % 7 1 Describe the international events leading up to the 2007 Glasgow International Airport attack. What were some of the incidents that had occurred in Australia and abroad? 2 What was some of the evidence that police alleged linked Dr Haneef to the Glasgow attack and attempted London bombings? How were these claims
Dr Haneef voluntarily returns to India, no longer with a valid Australian working visa.
argued and do you
Federal Court of Australia overturns the Minister for Immigration and Citizenship’s decision to cancel Dr Haneef’s visa.
plausible?
believe they were 3 Using the timeline
Full Court of the Federal Court of Australia confirms the judgment overturning the visa cancellation.
above, describe in
Federal Attorney-General announces an inquiry into the case of Dr Haneef, called the Clarke Inquiry.
of the most important
Findings and recommendations of the Clarke Inquiry are presented to the government.
during the case of Dr
Clarke Inquiry report is presented to the public.
selection.
chronological order five events that occurred Haneef. Justify your
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2/9/09 8:02:52 PM
- E C H A N I S M S F O R A C H I EV I N G J U S T I CE I NT HE-OHA MED(A NEEFC A SE The laws applied in the case of Mohamed Haneef
or charges. The object of these amendments
fall into three main categories:
was ‘to prevent an imminent terrorist act’ or ‘to
s Anti-terrorism laws which had allowed Dr Haneef
preserve evidence of or relating to a recent terror-
to be detained for 12 days without charge
ist act’. Under a preventative detention order,
s Anti-terrorism laws under which Dr Haneef was
a person has the right to contact a lawyer, one
eventually charged, and later released after the
family member or household member, his or her
charge was dropped
employer, and one employee or business partner,
s Australian migration law relating to the
but only to let them know that he or she is safe and
cancellation of Dr Haneef’s visa, and the later
cannot be contacted. The person being detained is
overturning of that decision.
not allowed to tell them that he or she is under a
These laws and other factors that were influ-
preventative detention order.
ential in Dr Haneef’s case, including the reactions
The Act also introduced new crimes with
of politicians, the media and the community, are
severe punishments for supporting or recklessly
examined below.
providing funds to a potential terrorist. Under the new s 103.2(1)(b) of the Criminal Code 1995 (Cth),
,EGALRESPONSES
the individual did not need to know that the person receiving the funds was a terrorist, only that he or
reckless able to foresee negative consequences of doing something, but carrying on with the act regardless. Recklessness implies a state of mind that is not as strong as an intention to do something, but for some criminal offences it is considered equivalent to intention for the purpose of establishing fault.
274
One of the features of the case that made it so
she was reckless about the possibility.
controversial was the use of recently introduced anti-terrorism laws. The Anti-Terrorism Act (No. 2) 2005 (Cth) was
!NTI TERRORISMLAWSAND $R(ANEEF
passed by the federal parliament in December
Following the terrorist attack at Glasgow Inter-
2005 amid much public and political debate. It
national Airport in June 2007, Mohamed Haneef
and other laws were introduced in an effort to
became the first person in Australia to be detained
hamper the activities of any potential terrorists in
under the Anti-Terrorism Act (No. 2) 2005 (Cth). Dr
Australia, and it included numerous provisions that
Haneef also became the first person to have his
were seen as a departure from accepted standards
detention extended under the Act and the first to be
of the criminal law and the separation of powers.
charged with supporting a terrorist organisation.
They were widely criticised as being ‘rushed’ and
Probably the most controversial aspect of the
in one incident a confidential draft of the legi-
case was those first 12 days of Dr Haneef’s
slation was published online by the ACT Chief
detention, as they involved detention of a suspect
Minister, Jon Stanhope, who stated that ‘law of this
without charge. Although the Anti-Terrorism Act
significance made in this haste can’t be good law’.
(No. 2) 2005 (Cth) only permits detention without
Nevertheless, the laws were passed without the
charge for 48 hours, complementary state legi-
full support of the parliament or the public, and
slation implementing the preventative detention
without incorporating many of the amendments
scheme could be passed, under which someone
and protections proposed.
could be detained for up to 14 days without charge.
Schedule 4 of the Act amended the Criminal Code
This was agreed between the Commonwealth and
1995 (Cth). The changes included the introduction
state governments in September 2005. In NSW,
of preventative detention – that is, short-term
the Terrorism (Police Powers) Act 2002 (NSW), as
detention for named individuals without evidence
amended by the Crimes Legislation Amendment
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(Terrorism) Act 2004 (NSW), permitted exactly that, provided that the police obtained a preventative detention order from the Supreme Court of NSW to prevent an imminent terrorist act or preserve evidence of a recent terrorist act. wife until he had been held in detention for nine days. It was not until 14 July 2007 that Australian Federal Police made the decision, following consultation with the Commonwealth Director of Public Prosecutions (CDPP), to formally charge Dr Haneef under s 102.7(2) of the Criminal Code
Figure 13.5 Dr Haneef’s barrister, Mr Stephen Keim SC
1995 (Cth) with the offence of providing support to a terrorist organisation, being reckless as to
evidential links by the AFP and prosecutors, as
whether it is a terrorist organisation.
outlined earlier in this chapter, suggests that the
This new approach represents a significant
case against Dr Haneef may have been one of
departure from accepted law regarding involun-
guilt by association rather than any real evidence
tary detention and the separation of powers
linking him to the crime accused.
between the government and the courts. In the
Perhaps an earlier indication of this was evident
case of Lim v Minister for Immigration [1992] HCA
in the granting of bail by the Brisbane Magistrates’
64, the separation of powers was interpreted
Court to Dr Haneef following formal charges by
by the High Court of Australia as preventing
the AFP. Under the terrorism legislation, ostensibly
involuntary detention by the government except
for the protection of the public interest, bail could
as a consequence of a court’s finding of criminal
only be granted for terrorism offences under
guilt. Some exceptions are possible, for example
‘exceptional circumstances’. In an emotional
a short period of detention following a person’s
hearing during which Dr Haneef reportedly wept,
arrest before he or she can practically be brought
Dr Haneef’s barrister, Stephen Keim SC, argued for
before a court, or when awaiting trial on remand
his release on bail, as the prosecution’s case was
following a charge if bail is refused by a court.
‘extremely weak’. Commonwealth prosecutors
It has been argued that state legislation that
argued that Dr Haneef should remain behind bars.
gives a state court a power that is incompatible with
The magistrate made the decision to grant Dr
constitutional restrictions on federal courts (such
Haneef bail on the condition that he would provide
as the power to grant a preventative detention
a $10 000 surety.
order) is also a new and disturbing departure from
These deficiencies highlight some of the
the principles enunciated in Lim and also in Kable
dangers inherent in the anti-terrorism laws and
v DPP (NSW) [1996] HCA 24.
their potential to severely restrict a person’s
As discussed above, serious deficiencies were
liberty. Following the bail hearing, the Queensland
later discovered in the evidence used by Australian
Department of Health suspended Dr Haneef’s
police to detain Dr Haneef and repeatedly to extend
employment without pay pending the outcome of
that detention. The decision to charge Dr Haneef
the charges. Although bail was granted, Dr Haneef
was also controversial and involved questions
elected to remain in custody without exercising
about the quality of the evidence against him and
his right to bail, probably due to the high dollar
the soundness of the decision by the AFP and
amount required for bail and the government’s
Commonwealth prosecutors. This is particularly
decision to cancel Dr Haneef’s visa, as discussed
relevant where the reliance on certain tenuous
below.
Commonwealth Director of Public Prosecutions (CDPP) independent prosecuting agency established by a federal Act to prosecute alleged offences under federal laws separation of powers the doctrine that the powers and functions of the judiciary are separate from those of the legislature and the executive guilt by association criminal liability imposed for associating with another person who commits a crime, rather than for committing that crime oneself surety a sum of money provided to support an accused person’s undertaking that he or she will return to court for hearing at a later date, as a condition of granting bail; it is agreed that the money will be forfeited if the accused fails to appear
Cha pter 13 – Mohamed H aneef
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L aw in p rac tic e
Dr Haneef was not even permitted to contact his
275
2/9/09 8:02:55 PM
ministerial discretion power granted to a minister under an Act to make a specified decision or order
-IGRATIONLAW
Without a valid Australian visa to remain, and
Another significant aspect of the case involved
most likely without any desire to remain after the
the cancellation of Dr Haneef’s working visa
events, Dr Haneef voluntarily returned to India on
under Australian migration law. In Australia, the
29 July 2007.
governing statute is the Migration Act 1958 (Cth). It
However, the Federal Court case challenging the
is enforced by the federal Minister for Immigration
Minister’s decision went ahead and on 21 August
and Citizenship and overseen where necessary by
2007, Justice Spender of the Federal Court of
the federal courts.
Australia set aside the decision on the basis that
Dr Haneef had been granted a ‘business (long
the Minister had erred in applying the wrong test
stay)’ visa under the Act, which was valid from
of ‘association’. Justice Spender also noted that the
30 August 2006 to 30 August 2009 and was
circumstances had since changed.
sponsored by his employer, the Queensland Dep-
The government appealed to the Full Court of
artment of Health. On the day of Dr Haneef’s bail
the Federal Court but the judgment was upheld on
hearing on 16 July 2007, immediately following the
21 December 2007. In an interesting comment in
decision to grant Dr Haneef bail, the then Minister
the case, Justice Spender had questioned the char-
for Immigration and Citizenship, Kevin Andrews,
acter grounds of associating with terrorists under-
used his power of ministerial discretion under
pinning the Minister’s decision. ‘Unfortunately I
s 501(3) of the Act to cancel Dr Haneef’s visa.
wouldn’t pass the character test on your statement
The direct consequence of the Minister’s decision
because I’ve been associated with people suspec-
was severe. As a result of his visa being cancelled,
ted of criminal conduct,’ Justice Spender said to the
Dr Haneef effectively became an ‘unlawful non-
Immigration Department’s counsel.
citizen’ under the Act, which meant that he became liable to detention by the Department of Immigration pending his removal from Australia. In effect, this meant that if Dr Haneef accepted his right to bail and release from custody, he could be liable for further detention under different laws. The grounds for this decision were questioned not only by Dr Haneef’s legal team but by many commentators. The Minister had made his decision on the basis that Dr Haneef had failed the ‘character test’ necessary for the granting of the visa, based on a reasonable suspicion that he
2 %6 ) %7 1 What were the three main categories of laws applied in the case of Dr Haneef? 2 What were the anti-terrorism laws applied in the case of Dr Haneef and why were they controversial? 3 Describe the legal events surrounding the cancellation of Dr Haneef’s Australian visa. Do you think that the cancellation was justified on the facts?
had an association with terrorists. Dr Haneef’s legal team brought the decision before the Federal
.ON LEGALRESPONSES
Court of Australia for review. The charges against Dr Haneef had been
276
-EDIAANDPOLITICS
withdrawn by the Commonwealth Director of
As is true of many high-profile cases, the Australian
Public Prosecutions on 27 July 2007, citing ‘no
media were very influential in shaping public
reasonable prospect of a conviction’, and Dr
opinion with respect to the case of Dr Haneef.
Haneef was immediately released from custody
Media coverage at the time was generally highly
and his passport returned to him. The Minister
critical of the government’s position and the
stated that he was seeking advice on Dr Haneef’s
lack of evidence in the case and there was much
visa and did not intend to detain him but that he
analysis of the impact of the government’s new
had a responsibility to act in the national interest.
anti-terrorism laws.
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L aw in p rac tic e Figure 13.6 The media in Australia were very influential in shaping public opinion in the Haneef case.
Perhaps the most important event in the
to a copy of that document, and that document
reporting of the case occurred when Dr Haneef’s
was provided to him, without any restrictions
barrister, Stephen Keim SC, leaked a 142-page
whatsoever. He was perfectly entitled, through me,
transcript of Dr Haneef’s initial interview with
to release that document.’ Mr Keim argued that
the AFP to the media. According to Keim, the
the government was applying a double standard,
transcript clearly showed ‘the very thin case
in that government authorities had also leaked
that the police are claiming to have’. Both John
parts of the transcript to the media to suggest that
Howard, then Prime Minister, and Mick Keelty,
the case against Dr Haneef was stronger than it
then Federal Police Commissioner, expressed
actually was. Mr Keim was later cleared of any
outrage at the leak.
professional misconduct and was given a civil
Before the source of the leak was identified,
rights award for his effort. He was also named an
Prime Minister Howard had publicly condemned
‘Australian of the Year’ by the Weekend Australian
it, saying, ‘Whoever’s been responsible for leaking
magazine.
this document is not trying to make sure that
Following Dr Haneef’s release on 27 July 2007,
justice is done. Whoever’s responsible for this is
in an interesting comment on political influence
trying to frustrate the process and it should be
in the case, prominent barrister Lex Lasry QC
condemned.’
stated that bungles in the case against Dr Haneef
Initially, Mr Keelty took the unusual step of
may have been caused by political pressure in an
publicly criticising Mr Keim and suggested that he
election year. ‘I think there were pressures probably
would pursue legal action to charge the source of
on the offices of the DPP and to some extent on
the leak with contempt of court because the court
the AFP, probably resulting in converting whatever
proceedings had already begun and because the
suspicion there was into a charge which was not
leak undermined judicial process.
supported by any evidence,’ he said. ‘I think this
Mr Keim, however, successfully argued that
case demonstrates a couple of things and one of
his client, ‘pursuant to the legislation under which
them is that politicians ought to keep out of these
he was detained and questioned, has a legal right
cases and leave the police to do their work.’
Cha pter 13 – Mohamed H aneef
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legal links
pro bono a Latin term meaning ‘for the public good’, used to describe work that is done by a lawyer or barrister on a voluntary basis and without payment, where there are issues of community concern or significant effect on disadvantaged groups
The ABC closely covered the issues
website is devoted to the Mohamed
in the Mohamed Haneef case as they
Haneef case and includes a viewable
developed. An episode of its current
copy of the original episode: www.abc.
affairs show Four Corners was aired on
net.au/4corners/special_eds/20071001/
1 October 2007 discussing the issues in
haneef/default.htm
the case. The following ABC Four Corners
#OMMUNITYSUPPORT
The support of people in the legal community is
Throughout the case, a number of political
evident from the fact that Haneef’s legal team,
organisations, community groups and profession-
including Stephen Keim SC, agreed to represent
als provided assistance as well as commentary.
him pro bono, that is, at no cost.
Figure 13.7 Community support for Haneef during the case was strong.
278
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)NTERNATIONALRESPONSE
valuable commentary and expert opinion to media
The Haneef case was not only controversial in
reporters and in some cases staged demonstrations
Australia, but also received widespread attention
in support of Haneef. Some of these organisations,
internationally, particularly in Dr Haneef’s home
including links to their respective websites, are
country, India and not surprisingly in the country
listed below in the ‘Legal links’ box.
where the original terrorist attacks took place, the
Members of the Australian public fiercely
L aw in p rac tic e
In addition, many other organisations provided
United Kingdom.
debated the case, with some arguing that the
In the UK, a Guardian editorial condemned the
federal government would not have treated
‘grubby’ Howard government’s ‘demonising’ of
someone in this fashion if they knew he was
Haneef as ‘irresponsible electioneering’ to push it
innocent, and others suggesting that the Howard
to victory in the federal elections of 2007. In India,
government was trying to capitalise on terrorism
The Hindu newspaper accused the Australian
to gain support in an election year.
government of ‘high-handed action verging on vengefulness’. The paper, usually more restrained, called the investigation a ‘shambles’ and claimed
l eg al l in k s
the Howard government’s fight against terrorism was based on an ‘authoritarian mind-set and Visit the websites below and investigate the purpose of the organisations. Discuss the contributions each organisation may have made to the case of Dr Haneef. Australian Lawyers Alliance: www.lawyersalliance.com.au Amnesty International Australia: www.amnesty.org.au Australian Muslim Civil Rights Advocacy Network: amcran.org Law Council of Australia: www.lawcouncil.asn.au
indeed bloody-mindedness’. The
Indian
government
became
heavily
involved in the case following a direct appeal to the Indian Prime Minister by Dr Haneef’s wife, Firdous Arshiya. It was reported that Prime Minister Manmohan Singh was so worried about Dr Haneef after
2 %6) %7
this that he was unable to sleep.
1 How did the media shape
The Indian involvement resulted
public opinion in response to
in direct discussions between the
the case of Dr Haneef? Were
two countries about the facts and
there any allegations about
progress of the case and included
political influence on the case?
a number of exclusive visits to Dr
2 How did the national and
Haneef by officials from the Indian
international community
High Commission in Australia
respond to the case of Dr
while Haneef was still in custody.
Haneef? Were the responses negative or positive?
2ES P O N S I VE N ESS O F T H E L AW One of the most significant outcomes of the case
The inquiry would include recommendations as
of Dr Haneef was the decision by the newly elected
to how to improve the law and law enforcement
Rudd government to institute an inquiry into the
agencies, to prevent such a situation occurring in
whole affair, to establish the facts and determine
the future.
what went wrong in the application of the laws.
Cha pter 13 – Mohamed H aneef
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2/9/09 8:03:01 PM
4HE#LARKE)NQUIRY
stances would not occur again. The main
On 13 March 2008 the Commonwealth Attorney-
recommendations of the report included:
General, Robert McClelland, announced an inquiry
s that the provisions of the Crimes Act 1914 (Cth)
into the ‘arrest, detention, charging, prosecution
in relation to terrorism offences, introduced by
and release’ of Dr Haneef, to be conducted by the
the Anti-Terrorism Act 2004 (Cth), be compre-
former NSW Supreme Court Justice, the Hon. John
hensively reviewed by an independent reviewer s that the government take steps to review
Clarke, QC. The Clarke Inquiry lacked a number of powers:
and determine ways to clarify the roles and
for example it had no power to compel witnesses
responsibilities
to answer questions and was impeded by the
agencies relating to counterterrorism and the
classified status of documents and difficulties
information that they collect
of
different
government
negotiating the national security concerns of
s amending s 102.7 of the Criminal Code 1995
the various agencies. Despite these limitations,
(Cth) under which Dr Haneef was charged, to
the report included a number of crucial findings
remove uncertainties about the element of fault
and recommendations. One of the main findings
or intention
was the conclusion that the
s recommendations to inform the Minister for
material used as evidence in
Immigration and Citizenship of the relevant
2%3 % ! 2#(
the case against Dr Haneef was
evidence in a counterterrorism case, to ensure
Conduct an internet search based
‘completely deficient’. The report
proper cooperation regarding visas
on the links above relating to the
stated that the main AFP officer
s development of ways to educate officers
government’s response to the
responsible for the investigation,
involved in counterterrorism cases about the
Clarke Inquiry and answer the
Commander Ramzi Jabbour, had
various roles and responsibilities of agencies and
following questions:
‘lost objectivity’ and was ‘unable
departments, and about the investigation and
1 Has the government made any
to see that the evidence he
prosecution of terrorist offences in Australia.
changes to the anti-terrorism
regarded as highly incriminating
For the most part, the government has agreed
laws following the findings of
in fact amounted to very little’.
the Clarke Inquiry?
The report included numerous
2 Has the government
to
Inquiry. However, many of the recommendations
improve
are complex and will take time to implement. At
implemented any of the
the effectiveness of the laws
the time of publication, it remains to be seen which
recommendations of the report?
and ensure that similar circum-
of these changes will be put into practice.
l eg a l l in ks
recommendations
to the recommendations made by the Clarke
The official website of the Clarke Inquiry
The Australian government’s official
into the case of Dr Mohamed Haneef
response to the Clarke Inquiry is available
has the inquiry’s terms of reference,
on the Commonwealth Attorney-General’s
statements and transcripts, submissions
website.
from all parties concerned in the case, and a copy of the final report: www. haneefcaseinquiry.gov.au/www/inquiry/ haneefcaseinquiry.nsf/Page/Home
280
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with the Labor Party to call publicly for a government apology to Dr Haneef. As yet, however, no formal apology has been made.
Following the public release of the Clarke Inquiry
Dr Haneef also said that he may seek sub-
Report on 23 December 2008 and the government’s
stantial compensation for loss of income and
response, a number of events relevant to the case
damage to his reputation. No announcement has
have taken place.
yet been made by the government relating to any
In an interview with ABC Radio shortly after the
L aw in p rac tic e
2ESPONSETOTHE#LARKE )NQUIRY2EPORT
compensation payable to him.
release of the report, Dr Haneef said, ‘I’m very,
More recently, on 2 September
very pleased and very relieved.’ Dr Haneef, then
2009 Mick Keelty announced his
based in Dubai, said the Clarke Inquiry had finally
intention to resign from the position
2 %3%! 2# (
proved his innocence. While he said it was too
of Australian Federal Police Com-
Search the internet for any
early to talk of a return to Australia, he suggested
missioner. While some, including
recent developments related
that an apology from the Australian government
the
to the Dr Haneef case.
would be appreciated. He said that the case had
General Robert McClelland, rejected
done great damage to his reputation, not only in
suggestions that the fallout from the
any compensation from the
Australia but also in India and around the world.
Clarke Inquiry was responsible for
Australian government for
Dr Haneef’s legal team, including Bernard
his resignation, many others, includ-
his time in detention?
Murphy, chair of the national law firm Maurice
ing Dr Haneef’s lawyers, welcomed
Blackburn, and barrister Stephen Keim, SC, have
the decision, stating that the AFP
any formal apology to
also gone on record several times calling for a
had been an ‘organisational disaster’
Dr Haneef or to the public
public apology from the government. In December
under Mick Keelty.
for the AFP’s handling of
Commonwealth
Attorney-
1 Has Dr Haneef received
2 Has the government made
the case?
2008, Queensland Premier Anna Bligh broke ranks
4HEFU T U REFOR!U S T RA LIA The Clarke Inquiry included some damning
a clear illustration of the dangers inherent in such
condemnation of the handling of the Haneef case
laws and their potential for abuse. It remains to be
and of the laws used to detain and prosecute him.
seen whether there will be changes to the laws as
This is particularly true of the controversial anti-
recommended by the Clarke Inquiry.
terrorism laws introduced in 2004 and 2005, as discussed above.
One final comment on the case was that of former Queensland Premier Peter Beattie,
Media commentary and the involvement of
speak ing after Dr Haneef’s release on 27 July
interested groups has increased public awareness
2007. Congratulating the Commonwealth DPP
of the laws and shed light on some of their defi-
for reviewing and dropping the charges against
ciencies and the potential dangers that the
Haneef, Beattie reiterated the importance of
changes to the law represent. The question that
people ‘having the guts to stand up and make the
must be considered is whether these laws are
point’ about unjust laws. The outcome of the case
truly necessary responses to terrorist threats. But
‘proves the system works … this is an indication
these threats cannot be seen in isolation from the
that Australia is fair-minded’, he said, and as such,
impact of such laws on the liberty of the individual
it ‘vindicates the Australian way of life’.
and the rule of law. The case of Dr Haneef provides
Cha pter 13 – Mohamed H aneef
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Ch a p te r s u m m a ry M u lt i p le - c hoi ce q ues ti ons 282
s Recent terrorist attacks have changed legal and political systems around the world and governments have gone to various lengths to try to eradicate terrorism. s Individuals such as Mohamed Haneef who are accused of terrorist activities may be subject to questionable legal processes as a result of governments’ zeal to catch and prosecute. s The Australian government recently introduced new anti-terrorism laws and Haneef was the first person to be detained under the Anti-Terrorism Act (No. 2) 2005 (Cth) and the first to be charged with supporting a terrorist organisation. s Some Australian counter-terrorism laws can be in conflict with fundamental principles relating to the rights of individuals.
The granting of bail in the Mohamed Haneef case demonstrates: A the seriousness of the charge B support for the anti-terrorism laws C a lack of sufficient evidence D none of the above Dr Haneef was charged on the basis of: A a SIM card given to his relative B involvement in the Madrid bombings of 2004 C the cancellation of his working visa D all of the above The Clarke Inquiry found that: A Dr Haneef was guilty of aiding terrorism B the evidence against Dr Haneef was not sufficient C the AFP and ASIO had acted properly in the case D Minister Andrews had no right to cancel Dr Haneef’s visa
s The Commonwealth Director of Public Prosecutions eventually withdrew the charges against Haneef, citing ‘no reasonable prospect of a conviction’. s The decision of the Minister for Immigration and Citizenship to revoke Haneef’s visa was overturned by the Federal Court. s There was considerable media, legal and community support for Dr Haneef in Australia and internationally. s While the laws have come under close scrutiny and criticism, debate continues over whether they are adequate to deal with terrorist threats while upholding the legitimate rights of individuals.
The Minister for Immigration and Citizenship cancelled Dr Haneef’s visa because: A Dr Haneef had overstayed his visa B Dr Haneef had given his relative his old SIM card C Dr Haneef was involved in the Glasgow International Airport attack D Dr Haneef failed the character test The new anti-terrorism laws challenge the rule of law because: A suspects like Dr Haneef can now be arrested arbitrarily and investigated for a terrorist activity B state laws have been superseded C bail now has a higher threshold D sedition now has a new definition
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L aw in p rac tic e
Ch a p te r s u m m a ry ta s k s Top i c revi ew
Outline the alleged links between Dr Haneef and his cousins in the United Kingdom. What do you understand by the term ‘guilt by association’? How does this term apply to the Haneef case?
Comment on the Minister’s decision to cancel Dr Haneef’s visa. What was the reasoning behind the decision and do you think it was justified? Explain the circumstances of Dr Haneef’s detention for 25 days. Under what different laws was he detained? Do you think we need different laws for terror suspects? Explain your response using the Haneef case as an example.
EX T EN DED R ES PON S E
‘Australia’s new terrorist laws severely erode civil liberties’. Discuss this statement in light of the Haneef case. Consider whether Dr Haneef should be able to receive compensation from the federal government. Explain why and discuss what amount you think would be fair and reasonable.
Marking criteria for the extended response questions can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your responses.
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A r e a 3 : I n d i v i d u a l s o r g r o u p s i n c o n f l i c t w i t h t h e s t a te
CHAPTER 14
ke y t er m s
chap ter ob j e cti ve s
Outlaw motorcycle gangs (OMCGs)
284
In this chapter, students will: s explore the background and issues related to organised crime and OMCGs in Australia s identify and apply legal concepts and terminology relating to OMCGs and the law s investigate the legal system’s ability to address issues relating to OMCGs s explore the different possible approaches of the legal system to organised crime and OMCGs s discuss the legal issues that these approaches will create s describe the legal and non-legal responses to OMCGs
bookmaking chapter coercive powers colours control order digital piracy draconian laws extortion guilt by association money laundering outlaw motorcycle gangs (OMCGs)
s explore the different legal approaches adopted by federal and state legal systems in relation to OMCGs s evaluate the effectiveness of legal and non-legal responses in achieving justice in relation to OMCGs in conflict with the state and the public.
organised crime patch task force rule of law
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L aw in p rac tic e
rel ev ant l aw IM PORTA N T L EGIS L AT ION
Serious and Organised Crime (Control) Act 2008 (SA) Crimes Legislation Amendment (Gangs) Act 2006 (NSW) Crimes (Criminal Organisations Control) Act 2009 (NSW) SIGNIFIC AN T C AS ES
The Milperra Massacre Trials
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/ U T L AW M O T O R C YC L E GA N G S I N!U S T RA L IA outlaw motorcycle gangs (OMCGs) organisations whose members use the structure of a motorcycle club as a front for criminal activity
Recent high-profile incidents involving members
According to the Australian Crime Commission
of outlaw motorcycle gangs have attracted the
(ACC), a federal statutory body established to
attention of the media, law enforcement bodies
investigate and combat serious crime, OMCGs
and legislators across Australia. In one of the most
represent a ‘real and present danger to the
recent incidents, a 29-year-old man, Anthony
Australian community’. In New South Wales
money laundering disguising money obtained from illegal activities to make it appear legal
Zervas, was killed at Sydney Airport on 22 March
between October 2008 and March 2009, 185 gang
2009 after being brutally bashed in the head with
members were charged with 527 offences relating
a metal pole. The incident involved an attack
mainly to violence, drugs and weapons.
by members of the Sydney-based Comanchero
The ACC estimates that there are currently 39
extortion obtaining money or property from a person or group by force, intimidation or illegal power
motorcycle club against members of the widely
active OMCGs in Australia, with approximately
known Hells Angels club. The man killed was
3300 full members, and with strong and complex
returning to Sydney from a party in Melbourne
criminal networks that operate in many illicit
with his brother and a friend, both of whom were
markets throughout Australia. Reports suggest
Hells Angels members.
that the groups’ main areas of criminal operations
organised crime illegal activities organised by criminal groups or enterprises, most commonly for the purpose of generating financial profit
The incident sparked public debate about the rising crime associated with outlaw motorcycle
are manufacturing and distributing illicit drugs, money laundering and extortion.
gangs (OMCGs) in Australia, amid fears that
OMCGs are not specific to Australia but are
the incident could ignite an all-out war between
present in many countries around the world. Some
members of rival motorcycle gangs.
of the most well-known OMCGs internationally include the Hells Angels and the Bandidos. Some 19 groups are estimated to operate in New South Wales alone, with some other famous groups including the Comancheros, the Finks, the Rebels and the Gypsy Jokers. This chapter investigates some of the issues relating to OMCGs and organised crime in general, and discusses some of the complex legal mechanisms that have attempted to deal with the issues.
/RGANISEDCRIME Organised crime can be defined as illegal activities organised by groups of criminals, most commonly for the purpose of generating financial profit. The most well-known organised crime groups in existence today are the Mafia, particularly the Figure 14.1 On 22 March 2009, Anthony Zervas was brutally murdered at Sydney Airport. The incident sparked a full review of the legislation relating to OMCGs in NSW.
286
Sicilian and American Cosa Nostra, the Japanese Yakuza, the Chinese Triads and the Colombian drug cartels. It has been popularised by books,
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movies and television shows, such as the HBO series The Sopranos, about an American Mafia family, and the Australian series Underbelly and A Tale of Two Cities, which are loosely based on the gangland wars in Melbourne in the 1990s and in
L aw in p rac tic e
New South Wales and Victoria in the 1970s. Organised crime has a long history worldwide. Throughout history pirates, highwaymen and bandits have attacked trade routes and roads to steal and profit from the goods being transported. Many people are familiar, for example, with the stories of the Kelly Gang in 19th-century Australia. Smuggling and organised drug-trafficking rings have also been common in many countries. Some of the current criminal organisations in Italy and Japan can be traced back over many centuries.
Figure 14.2 Top members of the Yamaguchi-gumi, Japan’s largest Yakuza organisation
Today, organised criminal groups operate in various areas of illegal business. The most common
same brush without justification or fair process.
of these are:
With motorcycle gangs in particular this can be
s drug manufacture and distribution
a significant problem: simply being a member of
s extortion and money laundering
one of the many legitimate motorcycle gangs may
s prostitution
arouse unfounded suspicion from the public, or
s people smuggling
even the police, that an individual is involved in
s environmental crimes such as the dumping of
some kind of wrongdoing.
toxic waste s counterfeiting of money
digital piracy unauthorised reproduction and distribution of digital music, software, videos or other material, often for profit bookmaking the activity of calculating odds on sporting and other events and taking bets
s digital piracy s illegal bookmaking and gambling. Figure 14.3, published by the ACC, shows the most common areas of organised crime in
Firearms
Fraud
Austra lia today. As the chart shows, the largest is illegal drug trading, but also common are money laundering and fraud. A new area is technology
High-tech ech cy cyber yber
crime, such as internet and credit card fraud. OMCGs have been identified in Australia as
Other
Money laundering
operating in some of the areas of organised crime discussed above. However, it is important to note that simply belonging to, participating in or associating with one of these groups does not
Drugs
necessarily mean that a person has committed any crime. It may only be a small number of individuals in such a group, rather than the organisation as a whole, who are involved in any illegal activities. There is a serious danger that all members might be painted with the
Figure 14.3 Illicit markets in which organised crime groups operate
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-OTORCYCLECLUBS
wheels’. The AMA currently claims to have close
Motorcycle clubs are not new. The first motorcycle
to 300 000 members and promotes various
was invented in 1885 in Stuttgart, Germany and
motorcycling events in the US and around the
motorcycles were commercially available by 1894.
world. The AMA also acts as an advocate for
One of the oldest motorcycle clubs, the Yonkers
motorcyclists before governments, local and
Motorcycle Club, was founded in Yonkers, New
international lawmakers, and the general public.
York in 1903.
There are hundreds of motorcycling organi-
There is nothing inherently wrong or criminal
sations in Australia. Clubs in New South Wales
about belonging to a motorcycle club. Many
include the Ulysses Club, the Ambassadors and the
people join motorcycle clubs to share a common
Vietnam Veterans. The organisational structures of
interest in motorcycles, or for recreational riding
clubs vary, but they often have elected officers and
or competition, and members of clubs come from
directors, annual fees and a regular publication.
all walks of life.
The clubs often sponsor social events and organise
Today, the largest motorcycling organisation
recreational or competition rallies. One of the
worldwide is the American Motorcyclist Asso -
biggest motorcycling competitions in Australia
ciation (AMA), which was founded in 1924. It
is the Australian Motorcycle Grand Prix, which
represents people with an interest in motorcycling
is an international event held annually on Phillip
– or as described by the AMA, ‘freedom on two
Island, Victoria.
Figure 14.4 Motorcycle clubs have evolved over time in much the same way as the motorcycle itself.
288
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The American Motorcyclist
of Australia (MRAA) is a non-profit
Association (AMA) promotes the
organisation founded in 1978
interests of motorcyclists generally
that represents the interests of
and organises various motorcycling
Australian motorcyclists. It aims
events.
to promote fair and sensible laws,
The website of the Australian
road safety, and a better image for
Motorcycle Grand Prix is
Australian motorcyclists.
at www.motogp.com.au.
1 What are outlaw motorcycle gangs and how widespread are they in Australia? 2 What is organised crime
L aw in p rac tic e
legal links
2 %6) % 7 The Motorcycle Riders Association
and how does it relate to OMCGs? 3 What is the difference between OMCGs and everyday motorcycle clubs?
/UTLAWMOTORCYCLEGANGS
rider was arrested and locked in a police cell, an
Outlaw motorcycle gangs represent only a very
man police force to release their friend. The event
small percentage of motorcycle groups. Some
became known as the Hollister riots. In a now
OMCGs have a long history, with one of the largest
famous statement, an AMA spokesperson clarified
international clubs, the Hells Angels, first formed
that it was only ‘one per cent’ of the riders that
in 1948 in Fontana, California.
weekend who had caused the trouble, and that the
estimated 750 riders challenged the local seven-
OMCGs began to emerge in Australia in the
other 99 per cent were law-abiding citizens. This
1960s and spread quickly across all states, with
distinction between ‘11 per cent’ and ‘99 per cent’
New South Wales now home to the greatest number
is still used by OMCG commentators today, and
of clubs and club branches, known as chapters.
‘1 per cent’ is sometimes even used by OMCG
The largest gang in Australia is believed to be the
members themselves as a mark of their identity.
Rebels, with an estimated 2000 members. The history of OMCGs is different from that of
Identity is important to OMCGs. Many motorcycle clubs, both mainstream clubs and OMCGs,
mainstream motorcycling clubs, and their roots
will have unique club ‘patches’ on the back of their
can be traced back to the late 1940s, following
members’ vests. These patches feature the club’s
the end of the Second World War. A number of
logo, name and often the initials ‘MC’ (motorcycle
motorcycling clubs began to emerge in the United
club), together with the club’s local branch or
States when servicemen returned from the war.
chapter. These patches form what is known as the
They formed clubs to mix with other returned
club’s ‘colours’. For OMCGs, the club’s colours are
servicemen, to share their interest in popular
very important to both the club and its members.
motorcycling, and possibly to escape the routine
Sometimes in order for a member to earn the club’s
of returning to full-time work.
patches, the club might require a vote and swearing
One of the first criminal incidents attributed to
of allegiance to the club, or the performance of
OMCGs was on 4 July 1947, American Indepen-
tasks. A member losing his (or her) colours, for
dence Day, when the American Motorcyclist
example to the police or a rival gang, might result
Association sponsored a series of motorcycle races
in some form of penalty or even expulsion from the
in the small town of Hollister, California. One of
club. Some OMCGs even have an additional patch
the motorcycle groups involved was reported to
with ‘1 per cent’, to clearly distinguish themselves
have initiated drag racing on the main streets of
from the norms and values of mainstream clubs;
town, as well as drunken brawling. When one
other patches include symbols such as a skull and
chapter a local branch of a motorcycle club patch a symbol or club logo attached to the back of a motorcycle club member’s vest colours a motor cycle club’s standard vest showing the club’s patches on the back as a mark of identification
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crossbones. The colours will also act as a crucial
2 %3%!2 #(
identifier for law enforcement agencies seeking to
Visit the website of the Australian Hells
prove OMCG involvement.
Angels and evaluate the content of the site.
The structure of an OMCG is often another important factor for the law in identifying the group
1 Are there any references to criminal activity on the site?
and its levels of membership under the defined
2 What attitudes are conveyed by the
legal terms for such organisations. The history and
photographs posted in the site’s
organisation of one such club, the Hells Angels, is
photo gallery?
c a s e s tu d y
discussed below.
4HE(ELLS!NGELS The Hells Angels Motorcycle Club
activities. If absent, the President is
originated in Fontana, California in 1948.
replaced by a Vice-President.
Initially, it attracted soldiers returning from the Second World War, and later the
the behaviour of members at meetings and
Vietnam War. The name ‘Hells Angels’
special events, such as funerals.
had been in use by several US air fighting
The Secretary-Treasurer controls
squadrons during both the First and
finances, with duties such as collecting
Second World Wars.
fees and paying club expenses, and may
The fact that many of the club’s founding members came from military backgrounds influenced the structure of the club and
sometimes act as intelligence gatherer if operations by police are pending. The Road Captain organises and
formed the basis of the military-style
navigates mandatory bike rides, including
hierarchy and notions of territory or ‘turf’
rest stops for food and petrol.
that still exist today. Over time, the Hells Angels grew from a
It is believed that there is a code of conduct governed by the Sergeant-at-
small club in California to an international
Arms, which may differ slightly from
organisation with approximately 189
chapter to chapter. It lays down three major
chapters in 22 countries.
rules that apply to all members:
An article published by Neal Hall in the
290
The Sergeant-at-Arms is responsible for
1 No sexual assault.
Vancouver Sun in 2005 provided insight
2 No use of heroin.
into the hierarchy of the Hells Angels Club
3 No ‘burning’ of drug deals (that is,
and the social structure of its individual
attempting to ‘rip off’ a buyer or seller).
chapters. In his article, Hall cited the expert
In Australia, the official Hells Angels
opinion of Sergeant Jacques Lemieux, an
website displays a range of activities based
Ottawa-based expert on the Hells Angels.
around the riding of motorcycles with
According to Lemieux, each chapter
prizes and giveaways. It features notices of
holds weekly meetings known as ‘church’.
events, e-mail contacts and a photo gallery.
The President is the absolute leader, and
It does not list any set of rules for club
makes key decisions about the chapter’s
members to abide by.
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L aw in p rac tic e Figure 14.5 Club colours are made up of a number of patches.
Figure 14.6 The Hells Angels mother chapter in New York
/-#'SANDORGANISED CRIME
exposure for violent criminal activity was also one
As mentioned above, according to the Australian
in 1984, in what became known as the ‘Milperra
Crime Commission, OMCGs present a visible
Massacre’.
of the largest criminal court cases in Australian history. The incidents occurred in a Sydney suburb
threat of complex and highly functional criminal networks. Although estimates vary, the cost of OMCG activities has been estimated at around $2.2 billion per annum. They are reputed to be involved in: s the manufacture and distribution of illegal drugs s money laundering and extortion s trade in illegal firearms s trade in stolen goods s violent crimes and motor vehicle offences. On the other hand, OMCG members claim that their clubs are legitimate motorcycle organisations and not used as fronts for organised crime, as claimed by law enforcement agencies. Many outlaw motorcycle gangs are believed to be involved in outwardly legitimate businesses such as entertainment, private security, finance, transport, natural resources and construction. One of the most important Australian cases in which OMCGs received widespread media
Figure 14.7 Milperra Massacre, the aftermath
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ca s e s p a ce
4HE-ILPERRA-ASSACRETRIALS The court case following the ‘Milperra
killed, along with a 14-year-old girl caught in
Massacre’ was at the time one of the largest
the crossfire while she sold raffle tickets. More
criminal trials in Australian history. In total,
than 20 others were wounded.
43 people were charged with seven counts of murder. The Milperra Massacre took place on
the instigator of the violence as the ‘supreme
Father’s Day 1984 in the Sydney suburb
commander’ of the Comancheros, and the
of Milperra. It involved two rival gangs,
person primarily responsible for the decision
the Bandidos and the Comancheros, and
that members of his club go to Milperra in
a number of other motorcycle gangs. The
force and armed.
chief conflict between the Bandidos and
Ross was given a life sentence for his
Comancheros was over the defection of the
part in the violence. Seven other members
former Bandido leader, William ‘Jock’ Ross,
of the Comancheros gang received life
to the Comancheros. There was intense
sentences and 16 Bandidos served 14 years for
rivalry between them and other outlaw
manslaughter. No ‘biker’ testified in the cases
gangs for control of the cocaine trade
and many of the details of the event are still
and the manufacture and supply of speed
unknown to this day.
(amphetamines). The heavily armed gangs clashed in the car
As a result of the massacre, the Firearms and Dangerous Weapons Act 1973 (NSW) was
park of the Viking Tavern in Milperra during
subsequently amended to introduce a new
a motorcycle swap meet. In the resulting
licensing regime for the control of firearms.
violence there was a murderous shoot-out
(The legislation currently in force in NSW is the
that saw four Comancheros and two Bandidos
Firearms Act 1996.)
Since the Milperra Massacre there have been
shots were fired into the doors by three men
many public and violent incidents involving
in balaclavas. About 150 people were inside
OMCGs across Australia. Some of the most shock-
when the shooting broke out. It was alleged the
ing recent examples include:
shootings were OMCG-related and a warning
s In 1999 in Geelong, Victoria, two public bomb-
to the club’s owners that they should use their
ings within 24 hours were the result of violence
security guards to further the club’s drug
following the torture and murder of a member
operations.
of the Comancheros by the Bandidos and the torching of the rival gang’s Sydney clubhouse.
s In 2006, Russell Oldham, the former Sergeantat-Arms of the Bandidos, is believed to have
s In Perth in 2001, former Western Australian
shot dead his chapter President, Rodney Monk,
Chief Detective Don Hancock and his companion
in a restaurant. The apparent cause of the
were blown up by a car bomb planted by the
murder was the affair Monk was having with
Gypsy Jokers. following an incident where one
his female parole officer, against club rules,
of the Gypsy Jokers’ members was shot and
further exacerbated by an order given by Monk
killed in a pub.
for Oldham to be expelled from the gang and
s In 2006 there was a drive-by shooting of a Sydney nightclub named ‘Gas’, in which 50
292
The judge in the case. Justice Adrian Roden of the Supreme Court of NSW, named Ross as
his club colours removed. Oldham was found dead several days later in an apparent suicide.
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is on the rise, and that OMCGs are moving into
Parramatta and Granville chapters of the
the maritime and security industries. OMCGs are
Nomads, previously affiliated with the Coman-
becoming more sophisticated. As with legitimate
cheros, defected to the Bandidos. The defection
business, the competition for profit and territory
caused a new eruption of violence between
can result in friction and rivalry, and the reports
the Comancheros and Bandidos, involving fire-
suggest that there may be a consolidation of the
bombings and drive-by shootings and resulting
smaller groups into larger and more powerful
in some 340 arrests and 883 charges. New
organisations controlling criminal operations in
South Wales Police set up Operation Ranmore
Australia.
to stop the escalation of violence.
As an issue of public and
The above cases illustrate only the public, violent
political concern in all Austra-
2 %6) %7
face of some OMCG activities. The black market
lian jurisdictions, OMCGs have
1 How did OMCGs develop and
criminal activities of OMCG-related business,
received much attention from
what is their history?
such the trade in illegal drugs or firearms, or
lawmakers. Some of the attempts
2 What are some of the
illegal financial activities like money laundering
by lawmakers and members of
characteristics of OMCGs and
and extortion, are often not as well known to
the
what is their structure?
the public.
problems, and some of the impli-
However, reports from Australia’s intelligence agencies suggest that crime associated with OMCGs
public
to
address
the
L aw in p rac tic e
s In early 2007 more than 60 members of the
3 What are some of the recent
cations of those attempts, are
cases involving OMCGs and
discussed in more detail below.
what issues do they present?
- E C H A N I S M S F O R A C H I EV I N G JU S T ICEI NRELAT IONTO/-#'S Recent media attention and public concern follow-
s establishing police task forces or increasing
ing some of the violent OMCG-related incidents
police powers to gather intelligence on OMCGs
have resulted in important, and unprecedented,
and target their activities
legislative responses. One of the main difficulties is that OMCG
s enacting laws that aim to criminalise the clubs themselves or participation in the clubs.
activities are a nationwide problem, but the prob-
The implications of these different approaches
lems often occur and are dealt with on a state-wide
are often a point of intense debate by politicians,
basis. Each of the different jurisdictions in Australia
law interest groups and other interested parties.
has elected to address the issue in different ways. In addition to the legal responses, responses of
,AWSTARGETINGINDIVIDUALCRIMES
the public and interested groups have helped to
All Australian states and territories have statutory
shape the approach to OMCGs around the country.
offences under which the members of OMCGs can be prosecuted for criminal acts. For example,
,EGALRESPONSES
prosecutions of participants in the violent incidents
Legal responses to OMCGs fall into three
standard criminal laws like assault, murder,
categories:
firearms offences or offences of dealing in illegal
s enacting laws to prosecute individuals for the
drugs.
specific crimes that they have committed, such as assault, drug offences or money laundering
mentioned above would have been made under
One of the difficulties encountered by police in dealing with OMCG criminal activities is that
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2/9/09 8:03:21 PM
Figure 14.8 Most jurisdictions in Australia focus of the types of illegal activities OMCGs might be involved in.
task force a special group or committee of experts formed for the express purpose of studying a particular problem coercive powers special powers sometimes given to a commission or police task force that allow it to summon any witness to give evidence or produce any documents – these powers are usually only vested in courts
prosecuting for individual crimes can seem
4ASKFORCESANDINTELLIGENCE
inadequate to deal with the widespread nature of
Another legislative response in Australia has been
the problem. The police work and the evidence
to provide greater powers to law enforcement
required to prosecute the individual crimes on
agencies to prevent, investigate and disrupt OMCG
a case-by-case basis is time-consuming and
or other organised crime activities. This often
resource-intensive. This is especially true with
involves the setting up of special law enforcement
OMCGs, where a ‘code of silence’ among club
agencies, or task forces, with special powers to
members, combined with a fear of speaking
investigate and prosecute the more serious crimes.
out on the part of both victims and other people
Some of these special powers might involve:
associated with the clubs, means that the evidence
s telecommunications interception
needed to convict will be very difficult to obtain.
s the use of surveillance devices
Convictions of only those individuals who can be
s special coercive powers
little impact on the wider organisational nature of
s sharing intelligence between state, national and
OMCG activities. As a result, most jurisdictions in
international agencies.
Australia have in place legislative frameworks that
Some of these special powers are controversial
focus more on criminalising the types of activities
because they increase the traditionally accepted
that OMCGs might be involved in, and that target
powers of government and law enforcement
the businesses and profits of those activities. These
agencies. They provide certain powers to police,
may feature:
such as coercive powers to compel witnesses to
s money laundering offences
give evidence, that are normally held only by the
s trafficking and smuggling offences
courts. When these powers are allowed, they
s orders for reporting of financial transactions,
will usually require a high degree of oversight
or
to ensure they are not abused. Such laws raise
s legislation whose object is to deprive criminals
important issues about the separation of powers,
of the proceeds or benefits derived from
as introduced in Chapter 2 – that is, the doctrine
their offences, to prevent reinvestment of the
that the powers and functions of the judiciary are
proceeds in further criminal activities, and to
separate from those of the other two branches of
enable law enforcement agencies to trace those
government.
proceeds: for example the Proceeds of Crime Act 2002 (Cth).
294
s search warrants
proved to have committed those crimes can have
Due to reported increases in OMCG activity in recent years, in 2006 the Australian Crime
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in Australia approach the issues in the
2 %3% ! 2# (
crime group’ and established the OMCG National
same way. The difficulties concern
Use the internet to search
Intelligence Task Force to investigate OMCG
questions of precisely how and by
for recent media articles
membership and activities and establish national
what process a group is defined as
about OMCGs and answer
policies to address the issues. In 2008, this task
criminal, and what level of individual
the following questions:
force was replaced by the Serious and Organised
involvement
1 Are there any new police
Crime National Intelligence Task Force, which has
example, would a group of four
task forces focusing on
a strong focus on OMCGs but also on other areas
teenagers going into a store to shoplift
OMCG activities?
of organised crime. It also works with agencies in
a DVD be a ‘criminal organisation’?
2 Where are these task
different Australian jurisdictions, and encourages
Would all four be equally guilty?
forces based, what is
collaboration.
Who should determine this and what
their jurisdiction (state,
crimes should be covered?
territory or federal), and
In addition to the federal government, a number of states have set up operations and task forces to
is
criminalised.
For
The four main issues that must be
what powers do they
deal with organised crime activities. For example:
determined are:
s In March 2009, the New South Wales police
s Defining an organisation – this
established Strike Force Raptor to target the
includes how many people can
illegal activities of OMCGs. By the end of April,
form a group (for example, two or more; three
more than 50 arrests had been made and 120
or more) and what activities or objectives make
charges laid, and substantial quantities of
it illegal (for example committing a serious
amphetamines and firearms seized.
offence or obtaining some profit or advantage
s In New South Wales, Operation Ranmore
have?
L aw in p rac tic e
Commission recognised OMCGs as a ‘high risk
from it)
was set up in 2007 as part of a crackdown on OMCGs, enabling police to raid the clubhouses of the Finks, Rebels, Lone Wolf and Fourth Reich and obtain evidence to lay charges. s In Queensland, the OMCG Task Force Hydra was established to target OMCGs and resulted in a number of charges for criminal activities. s In Victoria, the Purana Task Force was set up in 2003 to investigate the Melbourne gangland killings, and made a number of critical arrests.
,AWSTARGETINGORGANISATIONS ANDMEMBERSHIP Probably the most controversial approach to OMCGs is the introduction of laws that target or criminalise the clubs themselves rather than the individual crimes committed. In effect, this approach ‘outlaws’ motorcycle gangs in the true sense. This approach is most contentious where the law attempts to criminalise individual membership of or association with such clubs. There are a number of fundamental legal difficulties with this approach and no two jurisdictions
Figure 14.9 Motorcycle gangs tend to be targeted as a whole rather than as individuals when crimes are committed that involve their members.
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s What is the criminal link – the level of criminal activity that is required (for example: committed
rule of law the principle that no one is above the law; the most important application of the rule of law is that governmental authority is exercised in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps (due process) guilt by association criminal liability imposed for associating with another person who commits a crime, rather than for committing that crime oneself
than being applied equally to all.
a past offence, intends to commit an offence or
The second problem with the approach is that
come together to commit an offence, or simply
it affects a person’s fundamental freedom to asso-
poses a risk or threat of committing an offence)
ciate by introducing laws of guilt by association
s Process for determining – who can make the
– under which a person may be found criminally
decision on whether a particular group is a
liable simply by associating with another person
criminal organisation (for example: the courts
who commits a crime, even though that person
only, a government official, or simply the
has committed no crime himself or herself.
police)
Three Australian states have recently attempted
s Individual involvement – what involvement
to enact laws with elements of the approaches
with the group a person must have to be
outlined above. In Queensland, the first bill failed
considered criminal (e.g. leading the group, being
to pass in the Queensland Parliament and a second
a member of it, recruiting others, participating
has been proposed. In South Australia and New
in it, supporting it, or simply associating with a
South Wales, the bills were passed and enacted
member of it).
into law. Some of their provisions and associated
Many commentators have acknowledged the
issues are outlined below.
risks that this approach may pose to fundamental and accepted interpretations of the criminal law,
QU E E NSL A ND A PPRO A C H
and especially to an individual’s civil rights. Some
In 2007, the Queensland State Opposition intro-
of the serious questions raised are:
duced into the state parliament the Criminal Code
s Should an organisation be criminalised if its
(Organised Criminal Groups) Amendment Bill
members only appear to be potential offenders,
2007. The bill’s purpose was to amend existing
rather than actually committing or intending to
laws to extend their coverage beyond parties to
commit an offence?
offences, and to make it an offence to ‘participate’
s Should government officials or the police have
as a member of an organised criminal group. Its
the power to declare an organisation criminal,
provisions included:
or should this only be determined by a court?
s defining an organised criminal group as three or
Should the organisation’s members be given an
more people with an ‘objective’ of committing
opportunity to respond?
a serious crime for material benefit, or of
s Should a person be criminally liable for participating in such an organisation when he
296
target individuals or individual associations, rather
committing a serious violent offence s penalties of up to five years’ imprisonment for
or she has not committed any other offence?
participation as a member of that organisation,
s Should a person be criminally liable for
if the person knew it was a criminal organisation
simply associating with a member of such an
and his or her participation contributed to the
organisation?
occurrence of criminal activity
Two central concepts of the law are brought
s defining ‘member’ to include anyone identifying
into question by this approach. The first is the
himself or herself as a member, for example by
rule of law, introduced in Chapter 1: that is, the
wearing the club’s insignia, patches or colours.
principle that laws should be applied in the same
Critics of the bill questioned the lack of
way to all individuals. The danger of criminalising
connection between participation and actual
organisations, especially where police or govern-
criminal activity. The then Queensland Attorney-
ment officials can make the determination without
General and Minister for Justice Kerry Shrine
court oversight, is that the law may be used to
described the bill as ‘ill-conceived, unnecessary’
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and ‘[extending the] basic principles of criminal
Some of the most critical provisions
2 %3% ! 2# (
of the South Australian Act are:
Research information about
act or omission by the accused is necessary’.
s The Attorney-General can declare
new Queensland legislation
The bill did not receive enough support to
any organisation a criminal organi-
targeting organised crime.
pass. However, following the violent killing of
sation without stating grounds and
and answer the following
Anthony Zervas at Sydney Airport in 2009, the
without right of appeal or court
questions:
Queensland government announced that it would
review. For example, the Finks
1 Has the law been
prepare new laws giving police the power to apply
have now been declared a criminal
to the Supreme Court for an order prohibiting
organisation.
L aw in p rac tic e
liability to guilt by association’ where ‘no specific
passed? 2 What changes does it
identified members of an outlaw motorcycle gang
s The Act creates an offence with a
from associating with each other. At the time of
penalty of five years’ imprisonment
publication the proposed legislation had not yet
for anyone who associates more
the 2007 bill discussed
been revealed.
than five times a year with a
above?
make? 3 How does it differ from
member of a declared criminal SOUTH A US T R AL IAN APPR OAC H
organisation. This means a person
In South Australia in 2008, following numerous
can be deemed guilty by association
incidents involving OMCGs including a shoot-out
as a result of any contact or meeting, even
at an Adelaide nightclub where one gang member
though that contact could be entirely innocent.
was killed, the South Australian government
s The Police Commissioner can apply to the SA
enacted the Serious and Organised Crime (Control)
Magistrates’ Court for control orders prohibiting
Act 2008 (SA). The South Australian laws aimed
a person from associating with, communicating
to disrupt activities of OMCGs and other criminal
with or being in the vicinity of specified people.
organisations and protect the public from their
These orders can be made without the standard
violence.
criminal onus of proof beyond reasonable
The Act gave unprecedented new powers to the
doubt.
control order an order made by a court, government official or police officer to restrict an individual’s liberty, for example from doing a specified act or being in a specified place
government, allowing it to declare an organisation a criminal organisation and allowing police officers to make control orders preventing individual members of that organisation from doing specified acts or being in specified places. The laws are similar to some of the special terrorism laws introduced by the federal government following the ‘September 11’ terrorist attacks. For example, the Anti-Terrorism Act (No. 2) 1995 (Cth) introduced two new Divisions into the Criminal Code 1995 (Cth) allowing control orders and preventative detention orders to be made against individuals. The South Australian Act is not restricted to OMCGs but can apply to any declared organisation. A ‘declared organisation’ is one whose members associate for the purpose of organising or engaging in serious criminal activity, and that represents a risk to public safety and order, according to the SA Attorney-General.
Figure 14.10 South Australian Premier Mike Rann presents the new Act to the media.
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s A ‘senior police officer’ can prohibit a person or class of people, without court oversight, from being at a specified place or area or attending a
NSW Act did not include an offence for simply being a member of the organisation. Immediately following the Zervas murder at
specified event.
Sydney Airport, NSW Premier Nathan Rees intro-
The Act has attracted much criticism for its
duced new laws claimed to be ‘tougher than South
severe restrictions and lack of adherence to
Australia’s’ and rapidly passed a new Act through
long-standing principles of the criminal law. For
parliament to deal more specifically with OMCGs:
example, the Law Society of South Australia stated
the Crimes (Criminal Organisations Control) Act
that ‘the legislation goes too far’, that it ‘under-
2009 (NSW). Some of the important changes are:
mines the presumption of innocence, restricts or
s Police can make an application to the Supreme
removes the right to silence’, and does not allow
Court to have an organisation declared criminal.
courts to ‘challenge possibly biased, unfounded,
This provision for court oversight stands in
or unreasonable decisions of the Attorney-General
stark contrast to the South Australia law, where
or Commissioner of Police’. Individuals may have
it is the Attorney-General who can make the
no right to know the reasons for an order or to
declaration.
challenge the truth or reliability of those reasons.
s Membership of a declared organisation is an
Court challenges contesting the Act are certain
offence, as is ‘association’ between members of
to occur .
a declared organisation who are under control orders. ‘Association’ includes either being in
N EW S OUT H WAL ES A P P RO A C H
company with someone or communicating
In New South Wales, there have been numerous
with someone by any means. Declared gang
amendments to the law and legislation since the
members who continue to associate can face
1984 Milperra Massacre. In 2005 after several
two years’ imprisonment for a first offence or
gang-related incidents, including the December
five years for a second.
2005 Cronulla riots, the New South Wales
s The Act contains new offences for recruiting
government introduced the Crimes Legislation
members of a declared organisation, said
Amendment (Gangs) Act 2006 (NSW) to bring in a
to prevent establishment of younger ‘feeder
series of reforms specifically directed at OMCGs
groups’ for the organisations.
and organised crime. These included: s increased penalties for activities related to organised crime
easier for police to seize items connected to criminal organisations.
s increased powers for police to apply for search
As with the South Australian Act, some of
and seizure warrants, including the power to
the main concerns expressed were the potential
remove fortifications or surveillance cameras
for immediate charges and control orders to
designed to stop police entry, powers to pacify
undermine the presumption of innocence, and
guard dogs and even to block drains (to prevent
concerns about rights to freedom of association.
the flushing of drugs down the sink or toilet)
On the other hand, Australian Federal Police
s new offences for recruiting another person to
Commissioner Mick Keelty stated in an interview
carry out or assist in criminal activity
298
s It authorises new search warrants to make it
that he believed the new laws were appropriate:
s the introduction of offences for knowingly
‘New South Wales does have a particular problem
participating in a criminal organisation. The
… of the number of outlaw motorcycle gangs that
definition of a criminal organisation was almost
we’re aware of, 19 of them are situated in NSW,’
identical to the one contained in the Queens-
he said. ‘So of the nearly 40 gangs, nearly half of
land bill described above. Significantly, the
them are in NSW.’
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ABC Online, 3 April 2009
The New South Wales Parliament has passed controversial legislation targeting bikie gangs. The Greens voted against the laws, saying the new legislation could lead to police corruption. The legislation passed the Upper House of Parliament late last night following a lengthy debate. Under the laws police will be able to apply to have motorcycle clubs declared criminal organisations. Members could then be jailed for associating with each other and prevented from working in certain jobs. The legislation has been criticised by the NSW Law Society and the Bar Association, who say it is unlikely to withstand legal challenges. But NSW Attorney-General John Hatzistergos says he is confident it will be effective. ‘This legislation has the capacity to cause severe damage to these organisations,’ he said. ‘The Government has taken senior legal advice in relation to the legislation and its
capacity to be able to withstand constitutional challenge and on that basis has proceeded. ‘We have carefully considered the provisions of the legislation and the structures we have established.’ The laws follow a wave of bikie gang violence including the fatal bashing of the brother of a hells angel at Sydney Airport. CORRUPTION FEARS
The New South Wales Greens say the state’s new bikie legislation could lead to police corruption. Greens MLC Lee Rhiannon says the legislation is open to abuse. ‘It gives extraordinary discretionary powers to police,’ she said. ‘It also undermines the current rules of evidence, it weakens the right of freedom of association, and we are concerned that it could play out in a way that could increase the possibility for police corruption.’ Ms Rhiannon says legislation will not solve the problem of gang violence. ‘The challenge with this legislation was to pass it so that it improved public safety and ended gang-related criminal activity while preserving long-held tenants of the justice system, but that has not been achieved,’ she said.
L aw in p rac tic e
m e d i a cl i p
Controversial bikie laws pass NSW Parliament
2 %6) %7 1 What are the three main legal responses to OMCGs and organised crime? 2 What are some of the advantages and disadvantages of each approach? 3 How does the legislation differ between Australian jurisdictions? Which approach or approaches do you think are best and why?
Figure 14.11 Belconnen Police Station, ACT
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.ON LEGALRESPONSES In addition to the responses of lawmakers and law enforcement agencies as discussed above, there are a number of other responses to consider. These include those of the general public, the media, politicians, interest groups, and the OMCGs themselves. Some of these responses are explored below.
-EDIAANDPOLITICS
May, about 300 members of the different gangs converged on Parliament House in Adelaide and presented a petition against the new legislation. In response, South Australian Premier Mike Rann described the laws as the ‘world’s toughest antibikie legislation’ and stated, ‘We are talking about drug dealers on wheels and we are not going to bend or break because of [a] protest.’ In another interesting form of protest, in
Media coverage, and the ability of media reports
response to Queensland’s Operation Hydra aimed
to shape public opinion, have played a crucial part
at curbing criminal OMCG activities, a number of
in political responses to OMCGs. Violent incidents
OMCGs met to discuss tactics to fight fines issued
related to OMCGs are widely covered by the print
to motorcyclists. One of the tactics was a cam-
and broadcast media, and politicians are often keen
paign to fight all fines in court to create backlogs
to reassure the public that they are being ‘tough on
in the system, with the aim of forcing police to
crime’. This is most evident in the rapid response
reduce fines for traffic infringements.
of the New South Wales government, following the Sydney Airport murder, to strengthen organised
&ORMINGPOLITICALPARTIES
crime laws.
In one unique response to the OMCG issue,
The media have enabled public discussion of
members of the South Australian public who were
the advantages and drawbacks of the laws being
strongly opposed to the Serious and Organised
proposed, and they have the power to influence the
Crime (Control) Act 2008 (SA) and its implications
way the issues are dealt with by legislatures and
for civil rights decided to make their voice and
the police.
concerns heard by politicians by establishing a new political party, the F.R.E.E. Australia Party.
$EMONSTRATIONS
The party obtained formal political status on
Various sectors of the public have voiced their
19 March 2009 and is open to anyone who is
opinions on OMCGs and the law’s response
registered to vote in South Australia. Among its
through demonstrations. In March 2009 about 700
members are a number of motorcyclists con-
members of clubs including the Hells Angels, Gypsy
cerned about the introduction of the Act. Party
Jokers, Rebels and Finks organised a ride through
spokesperson Paul Kuhn said that the party
the towns of South Australia’s Barossa Valley,
opposes the Act, but is concerned about a number
accompanied by a police escort, to protest against
of other issues as well. ‘The name of the party
the Serious and Organised Crime (Control) Act 2008.
itself is FREE, which stands for Freedom, Rights,
It took place in conjunction with the Gypsy Jokers’
Environment and Education,’ he said in an inter-
annual ride, which had never before been open
view with ABC News.
to other clubs. In a second peaceful protest in
le g al li nk s
2 %6 ) %7
300
1 Describe some of the non-legal responses The F.R.E.E. Australia Party’s
to organised crime. How do they influence
website is at www.freeaustralia.
changes in the law?
org
2 What non-legal responses do you believe are most effective in dealing with OMCG issues and why?
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L aw in p rac tic e
Figure 14.12 The Freedom Rights Environment Educate Australia Party has branches in South Australia, Queensland and New South Wales, and hopes to soon become a national party.
Res p o n s i ve n ess o f t he l aw Public order and safety are usually cited as the
and freedom of movement. Laws departing from
chief reasons for changing the law to address
these principles require mechanisms for review.
OMCGs. Due to the violence often associated
While it is too soon to assess the effectiveness
with many of their activities, OMCGs receive
of these laws – not only in reducing criminal
widespread media attention and result in often
activities and violence associated with OMCGs, but
emotive public discussion. The political responses
in ensuring justice for all parties concerned – they
of some Australian jurisdictions have focused on
will be judged on the facts over time.
draconian laws laws that are excessively harsh or severe – from Draco, a Greek legislator (7th century CE) whose laws imposed cruel and severe penalties for crimes
‘ramping up the laws’, being ‘tough on crime’ and ‘smashing criminal gangs’. The three main types of legislative responses to OMCGs and other organised crime are laws
R EV I EW 1 4 . 5
R ESEARC H 1 4 . 4
1 How do the responses
Search for recent news stories
targeting their activities, laws establishing police
of different jurisdictions
related to OMCGs and answer
task forces and special police powers, and
compare in addressing
the following questions:
laws that criminalise the organisations or their
OMCG-related activities?
1 Have there been any
members. Not all jurisdictions in Austra lia have
Which legal responses do
recent incidents involving
introduced laws in the third category. Following
you think are the most
OMCGs in New South
the Sydney Airport incident, both Victoria and the
effective and why?
Wales or around Australia?
ACT stated that current laws were sufficient and
2 How far should the law go
What happened in those incidents?
they had no intention of introducing new laws.
in attempting to address
Other states and commentators have claimed
the activities of OMCGs
that this may create ‘safe haven’ and ‘legislative
and other organised
charges have been laid
gaps’ for OMCGs to exploit, but there has been no
criminal groups? Do you
against OMCG members? Do
evidence of this to date.
think the responses have
the articles suggest that the
been appropriate?
new laws have been used or
Legal responses need to be carefully weighed,
2 What recent arrests or
and their implications considered, to avoid creating
have been effective?
‘draconian laws’ or sacrificing fundamental prin-
3 Have there been any
ciples such as the rule of law, the separation of
problems or court challenges
powers and the presumption of innocence, or
associated with the new
individual rights such as freedom of association
laws?
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Ch a p te r s u m m a ry M u lt i p le - c hoi ce q ues ti ons 302
s Organised crime is a problem for Australian society and for the law. It operates in many different industries and is associated with many different illegal activities. s Motorcycle groups have been in existence for over a hundred years and most were formed simply to share a common interest in motorcycles. s Outlaw motorcycle gang membership is a growing problem in Australia and there have been many recent public incidents involving OMCGs. s There are different legal approaches to OMCGs, each with its own advantages and disadvantages.
Organised crime can be defined as: A illegal activities carried out by organised groups, usually for financial gain B illegal activities carried out by more than one person in a single incident, where timing is important C activities such as rallies and protests organised by motorcycle gangs without a permit D exercise of certain police powers without authorising legislation The largest area of organised crime activity is: A digital piracy B extortion C drug trafficking D drunken brawling ‘Draconian’ laws are: A harsh, strict and punitive B enforced by both state and federal governments C enforced by state but not federal governments D enacted by the United Nations
s These include laws to prosecute individuals for specific crimes, the establishment of task forces, increased police powers, and laws that criminalise the clubs or participation in them. s Some of these approaches have ramifications with respect to fundamental principals of the criminal law and individual rights. s Different Australian jurisdictions have adopted different approaches to deal with the issues. s The media, politicians, the public and OMCGs themselves have voiced their views on the issues and on the legal responses. s The law needs to balance the interests of all parties involved s It is too soon to assess the effectiveness of recent responses of the law to OMCGs.
Under the South Australian Serious and Organised Crime (Control) Act 2008 (SA), who can declare an organisation criminal? A the Police Commissioner B the Supreme Court C the Premier D the Attorney-General What is one reason for enacting controversial laws outlawing motorcycle gangs? A to encourage competition between state premiers for the toughest anti-bikie laws B to give greater powers to police to compensate for their low pay C to limit motorcycle transport, which has a high degree of road fatalities D to target organised crime, which can be difficult to fight under ordinary laws against criminal acts
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L aw in p rac tic e
Ch a p te r s u m m a ry ta s k s Top i c revi ew
Discuss the problems of organised crime in Australia. What types of activities are related to organised crime and how widespread are they in Australia? Outline the origins of motorcycle gangs and OMCGs. Are they different, and if so, how?
Outline the different legal approaches to OMCGs. Describe some of the recent changes to Australian laws to deal with OMCGs. How do these differ from previous laws? Do you think some organisations should be criminalised? What level of participation in criminal organisations do you think should be prosecuted?
EX T EN DED R ES PON S E
‘Bikie gangs are like any other organisation or club. There are criminals in all walks of life’. Discuss this statement with reference to the law and at least one OMCG. Evaluate the responsiveness of the law in dealing with OMCGs. Do you think the legal approaches are fair? Which approaches do you think are most appropriate and why?
Marking criteria for the extended response questions can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your responses.
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Area 4 : Criminal or civil cases that raise issues of interest to students
CHAPTER 15
ke y t er m s
c hap ter ob j e cti ve s
File sharing and digital copyright
304
In this chapter, students will: s explore legal concepts and terminology relating to digital copyright and the law s investigate the legal system’s ability to address issues relating to digital copyright s explore the differences that exist between Australian and international law in relation to digital copyright s investigate the role of the law in addressing and responding to changes in relation to digital copyright s describe the legal and non-legal responses to digital copyright infringements
s evaluate the effectiveness of legal and non-legal responses to digital copyright infringements.
copyright copyright infringement copyright notice digital copyright extradition file sharing format-shifting intellectual property internet piracy piracy space-shifting technical protection measure time-shifting
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L aw in p rac tic e
rel ev ant l aw IM PORTA N T L EGIS L AT ION AN D T R E ATI ES
Copyright Act 1968 (Cth) Copyright Act (Digital Agenda Amendments) 2000 (Cth) Copyright Amendment Act 2006 (Cth) US Free Trade Agreement Implementation Act 2004 (Cth) SIGNIFIC AN T C AS ES
A&M Records Inc. v Napster Inc., 239 F3d 1004 (9th Cir 2001) Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 Metro-Goldwyn-Mayer Studios Inc. (MGM) v Grokster Ltd, 545 US 913 (2005) United States of America v Griffiths [2004] FCA 879
Cha pter 15 – File sha ring a nd d i gi tal copyri ght
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&I L E S H A R I N G D I G I T A L COPY R I G H T A N DT HELAW download to receive data from a central system to one’s own, local network or computer
The internet has given people not only access to a
Copyright is the area of intellectual property
whole world of information, but opportunities to
law that protects a person’s right to an original
use and interact with it in a way that they never
expression of an idea. It allows the creator the
could before. Photos, music, videos and software
right to do or prohibit certain acts relating to that
intellectual property intangible property that has commercial value and can be protected by law, e.g. text, images, designs, inventions and computer programs.
can be viewed and heard on our own computers or
expression, for example to reproduce it, publish it
transferred to other devices. The internet makes it
or make an adaptation.
copyright an exclusive right to publish, copy, publicly perform, broadcast, or make an adaptation of certain forms of expression, namely sounds, words or visual images digital copyright copyright as it applies to digital media digital piracy unauthorised reproduction and distribution of digital music, software, videos or other material, often for profit
possible to download these files to keep or share,
Historically, copyright law was confined to
sometimes for a fee but sometimes without paying
text-based material, but over time has expanded
for it. In some cases, the act of downloading this
to include rights in a range of types of works,
material may infringe another person’s intellectual
including books, films, software and music. The
property rights.
arrival of the internet over the past two decades has brought with it many challenges to traditional
$IGITALCOPYRIGHTAND INTELLECTUALPROPERTY
concepts in copyright law. Copyright law has had
This has become an area of concern not just for
it applies to this relatively new medium. One of
the owners of the material but also for lawmakers
the most significant issues in this area is digital
on a domestic and international scale. The
piracy occurring by means of file sharing. File
concept of intellectual property in cyberspace
sharing means distributing electronically stored
was introduced in Chapter 8. As discussed, intel-
information, often without authorisation.
to adapt to the new digital environment, and ‘digital copyright’ simply refers to copyright as
lectual property law protects a person’s rights to intellectual works and other intangible, or non-
&ILESHARINGANDINTERNETPIRACY
physical, property that the person has created.
Digital technology has enabled the average
Three types of legal protection for intellectual
computer user to make copies of almost anything
property are patents, trademarks and copyright.
with ease, much to the discomfort of the music and
file sharing the practice of distributing electronically stored information such as computer programs, music and video files, especially through the use of peer-to-peer (P2P) networks
movie industries. Digital copying is like oxygen in cyberspace – that is, the internet itself is dependent on the ability of users to upload, download and transmit digital text, files, web pages and so on. However, copyright infringement through unauthorised file sharing poses serious challenges for the laws of digital copyright. It has resulted in ongoing legal battles involving individuals, the
upload to send data from a local system or computer to a central or remote system, for other users to view, hear, or use
music, film and television industries, and online file sharing services. Popular portable devices that can easily transfer digital music between computers have allowed users to obtain their entertainment for free, or for only a nominal cost. However, to the music Figure 15.1 Copyright is one of the three types of protection for intellectual property.
306
industry and media networks digital copying was considered piracy. The term ‘pirate’ has been
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piracy (1) an illegal act of robbery of a ship at sea, outside the jurisdiction of any state; (2) the infringement of copyright
Figure 15.2 Computer users often illegally download overseas TV series before their release in Australia, and then watch them on their laptops, or burn them to DVD.
internet piracy unauthorised downloading or distribution of copyrighted material by means of the internet
used in this sense even before the first copyright
The music and other media industries were
laws were put in place in England with the Statute
often accused of being slow to catch on and offer
of Anne in 1709. An early reference was made by
accessible digital media solutions to meet this
English writer Daniel Defoe in 1703. He said of
rapidly growing market demand. The law was also
people who were distributing copies of his poem,
slow to change. For example, until 2006, it was still
‘A True-Born Englishman’, on the streets: ‘It’s
illegal under Australian copyright laws for some-
being printed again and again by pirates, as they
one to copy legitimately purchased music from his
call them.’ It is claimed that some 80 000 copies
or her own computer to a portable music device, or
were pirated on the streets of England, Ireland and
to upload the contents of a legitimately purchased
America and that this may even have contributed
CD into his or her computer’s
to Defoe’s fame by making his work available more
digital music library. Recording a
cheaply to the general public.
television program onto a video-
2 %6) %7 1 Outline what is meant by
peer-to-peer (P2P) networks computer networks in which individual participants are directly connected to each other, rather than through a central server
The term ‘internet piracy’ has been coined
tape for later viewing or even
to describe the downloading and/or distribution
making a music compilation on
digital copyright and how this
of unauthorised copies of music, film, television
a CD or cassette tape still con-
fits into the broader area of
programs, games and software via the internet.
stituted copyright infringement.
intellectual property law. 2 Explain what is meant by
This can be done by various means such as
Increasingly easy access to ‘free’
file sharing or peer-to-peer (P2P) networks,
file sharing technologies began
copyright infringement
BitTorrent programs, pirate servers, or websites. It
to put significant pressure on the
and piracy and how these
can also be done by people known as ‘hard goods
legal system to adapt. However, the
can occur in the digital
pirates’, who distribute illegal copies of copy-
absence of any adequate reform
righted material recorded on DVDs, CDs or video-
eventually led to costly legal battles,
tapes for profit.
both local and international, insti-
sharing arose and why it has
Digital copying over the internet grew rapidly in
gated by music industry and other
become a problem for industry
popularity, as it allowed users to obtain music and
media bodies in an attempt to
other media files freely, quickly, relatively simply,
protect their copyright and alleged
in the comfort of their own homes, and in an easily
loss of profit.
environment. 3 Explain how issues of file
and for lawmakers. 4 Discuss some of the changes to digital copyright that needed to be made to the
transferable and shareable format. It also allowed
Many of the legal issues relating
users to store and transport their own music and
to digital copyright and file sharing
law and within the relevant
media files much more easily than on multiple CDs
continue unresolved to this day.
industries, in order to respond
or DVDs, or the earlier and even bulkier videotape
These are discussed in more detail
to the growth of file sharing
and cassette tape collections.
in the following sections.
technologies.
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L aw in p rac tic e
copyright infringement the unauthorised use of copyright material in a manner that violates the owner’s rights
307
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- E C H A N I S M S F O R A C H I EV I N G J U S T I CE I N R E L A T I O N T O D I G I T A L CO PY R I G H T There are a number of legal mechanisms in place
relation to piracy of copyright material for trade or
to protect a copyright owner’s rights in his or her
profit on a commercial scale.
material. In Australia, copyright law is complex
In recent years, digital copyright issues have
and comes from many different sources, including
also attracted various non-legal responses. These
legislation, international treaties on copyright
include broad public education campaigns by
protection, and an expanding body of case law.
government and non-government bodies and
Many of these laws apply to copyright in the
the establishment of government and industry
digital environment and allow copyright owners to
organisations to monitor and provide advice on
bring civil action against those they believe to have
digital copyright issues, or to provide a voice for
infringed their rights. Many of the cases relating
the various groups affected. There has also been
specifically to digital copyright centre around the
high-profile coverage of digital copyright by the
question of who actually infringed copyright, and
media and industry bodies, as well as important
how their offence can be proved when it took place
commercial responses to changes in the digital
in a digital environment.
media and file sharing markets.
In addition to civil action by the copyright owners, Australian law also provides for criminal prosecution of copyright infringement coming under several categories of offence, with penalties including fines or even imprisonment. Currently, these copyright offences are used mainly in
,EGALRESPONSES ,EGISLATIVEPROTECTIONIN Australia Copyright
and
other
intellectual
property
matters are among the enumerated powers of the Commonwealth parliament (s 51(xviii) of the Australian Constitution) and are thus a federal responsibility. The Act that governs Australia’s copyright laws is the Copyright Act 1968 (Cth). The Copyright Act replaced an outdated Act based on older UK copyright law, and it brought together some of the principles from the case law on copyright at the time. The original Copyright Act has been subject to many amendments since it was first brought in, to respond to the changing issues in copyright law. It is known for being one of the largest and most complex Australian statutes and currently runs to a total of 646 pages. Australian courts have had to decide how the Copyright Act is to be interpreted and applied in greatly different Figure 15.3 Police remove boxes of pirated DVDs from a truck after seizing them from a house in Melbourne in 2008. They believe they seized around $30 million worth of illegal merchandise during this raid.
308
contexts. As a result, trying to work out how copyright applies in a particular situation can require looking at both the Copyright Act itself and previous court decisions.
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Some countries, such as the United States and Canada, have government systems for the registration of copyright. In Australia, individuals do not need to do anything in order to get copyright protection for their work: if a work meets the
L aw in p rac tic e
requirements for protection in the Copyright Act, it is automatically protected as soon as it is created, without the need for any registration. For a person’s work to qualify for copyright protection under the Copyright Act, the work must be: s the type of thing to which copyright applies (e.g. an artistic work or a musical work); s the result of some skill and effort (original and
Figure 15.4 In Australia, you do not need to do anything in order to get copyright protection for your work: if it meets the requirements for protection in the Copyright Act it is automatically protected as soon as it is created.
not merely copied from someone else); and s recorded or ‘fixed’ (for example on paper, a computer disk or a CD).
processes that are used to do so. It also introduced
Many people also choose to add a copyright
prohibitions on making or distributing devices
notice to their work to remind people that it is
designed to break technological protection
protected by copyright and to let them know who
measures, which are the digital ‘locks’ put in
is claiming copyright. However, for some forms of
place to limit copying or accessing of copyright
copyright, especially where copyright exists in the
materials. For example, access might be available
contents of a digital file such as a music or sound
only by use of an access code or a process such
file, it is often more difficult for the owner to label
as decryption or unscrambling, authorised by the
the work as copyright protected. Some individuals
copyright owner.
or companies now add what is known as a digital watermark to files containing copyright material
U S FREE TRA DE A G RE E M E NT
in order to ensure that information about the
I M P L EM ENTATI O N A C T 2 0 0 4 (C TH )
copyright owner is retained within the file.
In 2004 Australia entered into an agreement with
copyright notice a notice added to a work to inform people of who owns the copyright and when the work was created, e.g. ‘© Random Business Pty Ltd 2011’ technological protection measures tools or ‘locks’ that copyright owners use to prevent unauthorised copying or access to copyright materials
the US called the Australia–United States Free Trade
-ODERNISINGDIGITALCOPYRIGHT PROTECTION
Agreement (AUSFTA). As part of the agreement,
Since the year 2000, the Australian government
copyright laws to bring them more into line with
has had to review and amend the Copyright Act a
US laws and with certain international treaties.
number of times to adapt it to social, economic
One of the main amendments was to extend the
and technological changes. Some of the most
expiration of an owner’s copyright from 50 years
important amendments are as follows.
to 70 years after the author’s death. Another
Australia was required to amend a number of its
significant provision affecting digital copyright COPYRIGH T AC T ( DIGITAL AGEN DA
was to limit the liability of internet service
AM END MEN T S ) 2000 ( C T H )
providers for copyright infringements committed
This Act updated a number of provisions of
by their customers (Copyright Act 1968 (Cth) Part
the Copyright Act to include recent changes in
V, Division 2AA).
digital technology. It amended the definition of ‘communication’ of a work to include the act of
COPYRIGHT AMENDMENT ACT 2006 (CTH)
making a work available online or transmitting
This Act introduced further amendments to
it electronically, and to cover the technical
Austra lian copyright law that were required under
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space-shifting transferring music or a sound recording from one format to another or from one device to another, for example copying a music file from a computer to a portable player time-shifting recording a television or radio broadcast for later viewing or listening format-shifting copying books, journals, photos or videos from one format to another format, for example scanning a photo to digital format or printing a newspaper article
AUSFTA. It also updated a number of technological
Although the Copyright Act has come a long
provisions that were widely seen as outdated or
way in addressing some of the developments in
unfair. Some of the most important amendments
digital copyright issues, there are still a number of
to the Copyright Act 1968 (Cth) were as follows:
issues that have been left to the courts or to future
s the introduction of new criminal enforcement
legislation to resolve. It is also important to note
provisions, including on-the-spot fines for
that many apparently innocuous uses of copyright
copyright infringement
material, such as downloading or uploading files
s provisions permitting the copying of music
containing copyright material via the internet or
from format to format or device to device for
sharing them with friends on a personal website,
personal use, known as space-shifting
may still constitute infringement of another
s provisions allowing the recording of television or radio broadcasts for later viewing, called
person’s copyright and therefore may not be legal under Australian law.
time-shifting s provisions allowing individuals to change the
)NTERNATIONALTREATIESONCOPYRIGHT
format of copyright materials for personal use,
Another important part of Australian copyright
known as format-shifting, for example scan-
law comes from international copyright treaties
ning photos into digital files or printing an
that aim to ensure that copyright is protected
article
across international borders and that important
s widening of the provisions on technological
copyright issues are addressed similarly by
protection measures to make it an offence for
different countries. This is particularly relevant
individuals even to use a device designed to
to digital copyright, where works are constantly
unlock technological protection measures.
imported and exported between countries through the internet, through portable devices and through trade in music, software, films and DVDs. In Australia, international treaties must be incorporated into domestic legislation before they can become binding, and so the most important provisions of Australia’s international treaties should already be incorporated into the Copyright Act or other relevant legislation. However, the international treaties themselves are important measures
for
ensuring
copyright
protection
for Australian copyright holders in overseas jurisdictions, and to protect overseas copyright holders
from
infringements
by
Australians
within Australia. Australian works are protected automatically in most other countries. In the same way, works from most other countries are automatically protected in Australia. As mentioned in Chapter 8, the main treaties relating to copyright include: s Berne Convention for the Protection of Literary and Figure 15.5 Since 2000, the Australian government has had to review and amend the Copyright Act a number of times to adapt it to social, economic and technological changes.
310
Artistic Works (accepted by Australia in 1928) s World Trade Organization Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) (accepted by Australia in 1995)
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s Australia–United States Free Trade Agreement (AUSFTA) (accepted by Australia in 2004) s World Intellectual Property Organization Copyright Treaty (accepted by Australia in 2007)
L aw in p rac tic e
#ASELAWONDIGITALCOPYRIGHT The difficulty in applying digital copyright law and the scale of the file-sharing problem has led to a number of civil cases in recent years. As the internet is international by nature, the court challenges have occurred worldwide, with some of the most important cases in the US and in Australia.
Figure 15.6 Shawn Fanning, founder of Napster, a file-sharing website that shook the foundations of the music industry
They have involved complex legal arguments attempting to resolve how the laws apply to the different file sharing technologies and where the
per song for downloading songs like ‘If You’re Happy
liability should lie for infringements committed
and You Know It Clap Your Hands’. The girl said she
using those technologies.
thought ‘it was OK to download music’ because her
The first major legal battle relating to file sharing
mother had bought the Kazaa program for US$29.95.
and copyright infringement was in 2001 and
Eventually Kazaa settled the case with the girl’s
involved an 18-year-old named Shawn Fanning,
family for the sum of US$2000.
who set up an online file-sharing service called
The RIAA continued to bring civil actions
Napster. Napster was one of the first internet
against ordinary consumers who engaged in file
services dedicated to sharing mainly popular
sharing, and by 2005 the RIAA had sued 12 000
music and video files between users. Complaints
people. The main difference between Napster and
of copyright infringement had been received from
Kazaa was that Kazaa did not hold or store the
some of the most high-profile recording artists,
files centrally, but supplied the software and the
including Metallica and Madonna. In the US case
means for individual users to share files. One of
A&M Records Inc. v Napster Inc., 239 F3d 1004 (9th
the most significant cases against file sharing was
Cir 2001), the United States Court of Appeals for
launched against Kazaa in Australia in 2005 and
the Ninth Circuit found that Napster had infringed
this is discussed on the following page.
copyright by allowing its users to upload and download copyright-protected material on its central network. Napster was forced to change its service and business model to prevent its users from infringing copyright. Despite the outcome of the case, new file-sharing networks quickly arose, with one called Kazaa emerging as the most dominant. By 2004 Kazaa’s program had been downloaded 319 million times. This resulted in some of the most brutal legal battles related to file sharing. For example, in 2003 the US Recording Industry Association of America (RIAA) launched a series of lawsuits against some 261 individual users of Kazaa for copyright infringement through file sharing. One of these lawsuits involved a twelve-year-old girl who was sued for US$150 000
Figure 15.7 Niklas Zennstrom, the co-founder and CEO of Kazaa; creator of Skype; and cofounder of Joost
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ca s e s p a ce
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd;=&#! THE+AZAACASE A legal action was brought in
In his decision, Justice Murray
its software to increase its
the Federal Court of Australia in
Wilcox ruled that with its file-
advertising revenue.
2005 by 30 record companies,
sharing technology, Kazaa was
including major international
liable for copyright infringement
that Sharman ‘probably cannot
labels such as Universal,
because it had ‘authorised’ users
totally prevent copyright
EMI, Sony BMG and Warner,
to infringe the record companies’
infringement by users’, and as
against Kazaa’s Sydney-based
copyright. He found although
a result did not order Kazaa to
developer and distributor,
there were technical measures
be shut down. Concerned to
Sharman Networks. The record
that could have enabled Sharman
ensure that the software should
companies claimed that the
to ‘curtail – although probably
continue to be available for
Kazaa software, by allowing
not totally to prevent – the
people who use it for legitimate
users to download music for free
sharing of copyrighted files’,
purposes, the court allowed
over the internet, encouraged
Sharman had not implemented
Sharman to continue distributing
copyright infringement on an
them because this would have
its file-sharing software, but only
unprecedented scale.
been against its financial interest.
if it adopted certain technical
Justice Wilcox acknowledged
The Federal Court found that
Because Sharman made its
measures to stop and discourage
most of Kazaa’s music files were
money from advertising on
the infringement of copyright
‘shared without the approval of
the Kazaa system, it wanted
using that software.
the relevant copyright owner’.
to maximise file sharing using
2%3 % ! 2#(
.ON LEGALRESPONSES
seeking to educate the general public and to report on the ongoing developments.
Another important case in the file sharing wars was the US case of
It is often expensive, lengthy and difficult
Metro-Goldwyn-Mayer Studios
for those in the music industry to pursue
Inc. (MGM) v Grokster Ltd, 545
persons who are illegally downloading
-ARKETANDINDUSTRY RESPONSE
US 913 (2005). MGM argued that
files. It is also disputed whether pursuing
Despite attempts to put a stop to file-
file sharing software created and
ordinary computer users is an effective
sharing activities, there has been seemingly
actively marketed by Grokster
option. Corporations have tended to take
unstoppable growth in the market for file-
encouraged illegal downloading
legal action against only serial offenders,
sharing technologies and portable devices
of movies. Research the file-
as a deterrent, and against those who
with which to use them.
sharing issues in this case and
are making a profit through copyright
discuss the results.
infringement.
312
Supplementing the growth in portable music and video devices has been the
In addition, it would obviously not be
emergence of a large and competitive
possible for a company to bring a lawsuit
market offering legitimate downloading
against every individual who is infringing
services. For a small fee, users are given
copyright. Instead, consumer markets have
access to authorised copyright material in
been forced to adapt, to offer alternatives
a format they request. One of the largest
to illegal file sharing to meet the growing
players in this market has been the popular
demand. A number of industry and non-
iTunes Music Store, launched in 2003 by
industry bodies have been established,
the founder of Apple Inc., Steve Jobs.
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By striking a deal with major record labels to offer a legitimate file sharing service, iTunes ensured that the music industry could receive payment for their copyright material while giving users a convenient and safe method of getting songs from the internet.
L aw in p rac tic e
The store has since expanded to include copyright works from other industries threatened by digital copyright
infringements,
including
television
shows, films, radio, software and digital books. The popu larity of stores like iTunes and its success in returning a profit to the affected industries has shown that the traditional legal responses are not always the most effective.
!GENCIESANDORGANISATIONS
Figure 15.8 A number of industry and non-industry bodies have been established to educate the general public on copyright and infringement issues regarding media obtained over the internet.
A number of organisations and interest groups in Australia contribute to the discussion about copy-
A U STRA L I A N FEDE RATI O N A G A I NST
right and digital technology and provide research,
C O P YRI G H T TH E FT (A FA C T)
advice and education to the public, businesses and
AFACT was established in 2004 to protect the
the government. Some of these are listed below.
Australian television and movie industry against the effects of copyright theft. It works with industry,
COM M ON WEALT H AT T OR N EY-GEN E RA L’S
government and law enforcement agencies to
D EPARTMEN T
achieve its aims.
The Attorney-General’s Department holds responsibility for Australia’s copyright laws. It provides
EL E C TRO NI C FRO NTI ERS A U STRA L I A
information about copyright law and works closely
I NC . (E FA )
with groups and organisations that have an interest
Electronic Frontiers Australia is a non-profit
in the development of copyright law in Australia.
national organisation, independent of government, representing internet users who are concerned
AUSTRALIAN COPYRIGHT COUNCIL (ACC)
about freedom of expression in the online
The ACC is an independent non-profit organisation
environment and related issues. It aims to protect
that provides information and advice about
and promote civil liberties, advocate change in
copyright in Australia. The Council also produces
the law and educate the community about online
publications, carries out research and makes
social, political, and civil liberties issues.
submissions on copyright policy in Australia. It Australian Council for the Arts. M USIC IN DUS T RY PIR AC Y INVESTIGAT ION S ( MIPI)
MIPI acts on behalf of the music industry in Australia to provide investigative services and copyright enforcement, and is highly involved in
le g al li nk s
is funded by the Australian Government and the The website of the Attorney-General’s Department provides information on copyright: www.ag.gov.au/copyright The website of the Australian Copyright Council provides information on its activities: www.copyright.org.au The website of Electronic Frontiers Australia provides information on current issues at www.efa.org.au
educating the Australia public about the costs of music piracy to the music industry.
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2%6)%7
2 %3%!2 #(
1 Identify the domestic and international
1 Look for some further information on the
protection that is provided for Australian
internet about the Kazaa case. What were
owners of copyright materials.
some of the arguments used by the parties
2 How does an artist receive copyright
and do you think they were justified? Do
protection for his or her material and how
you think the outcome of the case was
can other people identify it?
correct?
3 Why did traditional copyright law have
2 Investigate some of the alternatives for
to change to include digital copyright
legally purchasing online media. Why do
protection and how did this affect ordinary
you think some computer users continue to
computer users?
download using file sharing technologies,
4 How has the music industry dealt with digital copyright infringers and how has the market responded? 5 Describe some of the measures taken by independent agencies to protect copyright.
and do you think this is justifiable? Why? 3 Look at the websites for each of the institutions and agencies listed above and describe how each agency is trying to educate the public about illegal copying and file sharing. 4 Which institutions and agencies do you think are more successful in achieving their goal of minimising digital copyright infringement? Why?
2ES P O N S I VE N ESS O F T H E L AW As discussed above, there has been much recent
infringement illegal, and in some cases include
change in both domestic and international
severe fines or possible prison sentences. While
copyright law, as lawmakers around the world try
prosecutions for digital copyright infringements
to keep up with the rate of technological change.
do not yet appear to be directed at the average
There have also been many civil lawsuits brought
computer user, there have been some important
by the music industry in an attempt to curb the
cases that need to be considered.
problem and deter future copyright infringement,
For example, in November 2007, Jose Duarte, 21,
as well as criminal prosecutions for large-scale
became the first person convicted in Australia for
piracy. This section considers some of those
recording a film from a cinema screen. In Sydney’s
responses and the future direction of the law.
Downing Centre Local Court, Duarte pleaded
#RIMINALLAWRESPONSETO DIGITALCOPYRIGHT
Movie using the camera in his mobile phone and
So far this chapter has mainly looked at the use of
the internet within hours of its global release but
the civil law in response to digital copyright issues.
prior to its US release. A criminal conviction under
But as mentioned above, the Copyright Act includes
the Copyright Act was recorded against Duarte and
provisions that make certain acts of copyright
he was fined $1000.
guilty to making an illegal copy of The Simpsons
314
uploading it to the internet. The film’s distributors confirmed that an illegal copy of the movie was on
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L aw in p rac tic e Figure 15.9 AFACT protects the film industry against piracy and copyright infringements in Australia.
Figure 15.10 Prosecutions for digital copyright infringements are not yet completely directed at the average computer user, but this could change in the very near future.
There have been many more recent examples of prosecutions for copyright infringements, ranging from smaller violations to very large and expensive piracy operations. Examples of these cases can be seen on the AFACT website, whose address is provided in the link below. A recent criminal case in Australia relates to the extradition of Australian resident Hew Raymond Griffiths for trial in the US on charges of copyright infringement for illegal software distribution. This is discussed in the
l eg a l l i n ks
‘Case Space’ on page 316.
Figure 15.11 The housing commission townhouse in which Hew Raymond Griffiths was reputed to live – as a wanted fugitive – at Berkley Vale on the Central Coast
The Australian Federation Against
current criminal cases under way against
Copyright Theft (AFACT) provides
Australians who have infringed film
news articles and updates on criminal
copyright and some of the penalties that
prosecutions against movie piracy and
have been applied: www.afact.org.au/
copyright infringements in Australia.
news.html
Visit the website and discuss some of the
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3/9/09 11:02:28 AM
ca s e s p a ce
United States of America v Griffiths;=&#! In a case closely watched by the
Coast of NSW, had not taken any
was sentenced to 51 months in
rest of the world, Hew Raymond
money for his activities. Drink
a US prison. This sentence was
Griffiths was accused by the
or Die specialised in ‘cracking’
reduced to account for time
US of being a ringleader in an
copyright-protected software,
served in Australian custody and
internet software piracy network
movies, games and music by
in March 2008 he returned to
called Drink or Die. The case is of
removing the embedded codes,
Australia.
interest not just because it sets
then distributing them free of
a benchmark in the prosecution
charge.
of digital copyright infringement,
The extradition was a controversial topic in Australia,
The US Government took the
as it led to questions about
but also because it involves an
case for extradition to the Federal
why Griffiths could not be
Australian resident indicted by a
Court of Australia, with lengthy
prosecuted in Australia, where
court in the State of Virginia, US
proceedings involving three
he had also infringed Australian
for copyright infringement under
Australian court cases. The US
copyright law. Extradition to a
the US law. The case highlights
Government was successful in the
foreign country merely because
the serious consequences for
Federal Court of Australia and in
businesses in that country
internet users worldwide if they
the Full Court on appeal. Griffiths
were affected by the person’s
are charged with infringement
applied to the High Court of
acts was seen by some to be a
of internationally protected
Australia for special leave to
disproportionate response, and
copyright.
appeal, which was refused.
one that implied an inappropriate
Pending the High Court hearing
degree of influence over Australia
to extradite Griffiths for his
of his application, he was held in
by the foreign country. On the
infringements, despite the fact
custody in Australia. In February
other hand, the decision to
that he was not a fugitive and
2007, Griffiths was extradited to
extradite Griffiths was praised
had not committed a violent
the US, where he pleaded guilty
by some as an important step
crime. Griffiths, who lived in a
in a Virginia court to criminal
in enforcing the international
modest house on the Central
copyright infringement. Griffiths
protection of copyright.
The US Government sought
4 H E F U T U R E O F D I G I T A L COPY R I G H T I N!U S T RA L IA
316
Despite stronger legislation, a constant stream
of whom are downloading every month. Nearly
of court actions and the arrival of alternatives to
70 per cent of Australians agree that illegal file
illegal file sharing, the issue of digital copyright
sharing is stealing, but only half of all 14- to
infringement has far from disappeared. For
24-year-olds agree with this statement. There is
example, Australian music industry organisation
a common perception that accessing ‘free music’
Music Industry Piracy Investigations (MIPI) has
from home does not really hurt anyone, and as
carried out research into the extent of music piracy
discussed above this is a perception that both the
in Australia, which found that around 2.8 million
music industry and governments have tried very
Australians download music illegally, 75 per cent
hard to change. It is not only record companies
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L aw in p rac tic e Figure 15.12 The law has to constantly and rapidly keep adapting itself to meet the challenges for copyright law and digital technology.
that are deprived of income by illegal distribution
2 %3%!2 #(
2 %6 ) %7
of music, but also the musicians, composers and
1 Research some of the recent
1 Discuss whether and
authors who created the musical works.
cases involving file sharing
in what circumstances
and digital copyright,
criminal prosecution for
nology continues to change and technology
including the current status
copyright infringement is an
expands into more areas traditionally protected
of the Australian case
appropriate response.
by copyright. Although most of the civil actions
between AFACT and internet
to date have centred around the music industry,
service provider iiNet. How
Hew Raymond Griffiths was
the battle is now turning to film and video media
do you think these cases are
important for Australia and
and television networks. For example, a civil case
changing the effectiveness
outline the outcome of the
was commenced in 2008 by AFACT in Western
of digital copyright in
Australia against internet service provider iiNet.
Australia and its impact on
3 Discuss whether you think
It involves large movie industry players such as
ordinary computer users?
the responses to digital
Issues are likely to multiply as internet tech-
Village Roadshow, Universal Pictures, Disney
2 A controversial new
2 Explain why the case of
case.
copyright infringement in
Enterprises and the Seven Network, and is
international treaty on
Australia and around the
important internationally because it tests the
copyright infringement
world have been sufficient
liability of internet service providers for the copy-
called the Anti-
and what actions you think
right infringements of their customers.
Counterfeiting Trade
might be used in the future.
The law has adapted very rapidly in recent
Agreement (ACTA) is under
years to meet some of the challenges for copyright
negotiation in response to
law and digital technology. The effectiveness of
pirated copyright-protected
many of these laws is yet to be seen, as cases will
works. Research the current
be played out in the courts in the coming years.
status of this treaty and
As technology continues to change and people
consider how it might affect
become more familiar with how to use it, as well
Australian copyright laws.
as how to abuse it, the law will continue to adapt.
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Ch a p te r s u m m a ry M u lt i p l e- c hoi ce q ues ti ons 318
s Digital copyright protects against the unauthorised use of copyright material in an online environment. s Original material (also known as intellectual property) is protected by both domestic and international copyright laws. s The music and film industries have brought civil actions against persons infringing copyright. Two of the leading cases were the Napster and Kazaa cases in the US. s Criminal prosecutions for copyright infringement have also been undertaken, including NSW Local Court case against Jose Duarte for recording a movie in a cinema and United States of America v Griffiths, which involved an Australian distributing illegal software and other media for free.
What is the meaning of internet piracy? A the downloading of movies without the owner’s permission B the downloading of music without parental permission C the downloading and/or distribution of media without the owner’s permission D the downloading and/or distribution of media without parental permission How are copyright owners protected from internet piracy in Australia? A by professional standards of ethics in the music and movie industries B by state and territory laws C by the Copyright Act 1968 (Cth) D by Border Protection Command What effect has the Australia–United States Free Trade Agreement had on the protection of copyright in Australia? A It has helped to develop more copyright uniform laws. B It allows Australians and Americans to copy each other’s media for free. C It has provided one copyright law for the whole world. D It has provided an agreement that Australia and America will play each other’s music on the radio.
s The average user of the internet does not see illegal downloading as a serious crime. s Education of the public therefore plays an important role in dealing with the issue. s In general, those operators that make profits from illegal downloading will be pursued, rather than individual users.
Why was AFACT established? A to lobby for the rights of Australians accused of internet piracy in the United States B to represent Australians concerned about freedom of expression and civil liberties C to protect the music industry from illegal downloading and educate the public about internet piracy D to protect the film and television industry from illegal downloading and educate the public about internet piracy Why is the case USA v Griffiths so important? A It involved the creation of enormous wealth through illegal downloading using the internet. B It involved an Australian citizen being charged in an American court for crimes committed on the internet. C It involved a case of mistaken identity, as the prosecution assumed Griffiths was American. D It involved an American citizen being charged in an Australian court for crimes committed on the internet.
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L aw in p rac tic e
Ch a p te r s u m m a ry ta s k s Top i c revi ew
Outline what is meant by internet piracy and illegal file sharing and what laws are relevant. Explain why stopping illegal downloading of material and file sharing is a problem for lawmakers. Discuss some of the approaches of lawmakers to digital copyright issues. Do you think the law has effectively adapted to protect digital copyright?
Outline some of the approaches of industry, organisations and the market to the issue. Which approaches do you think are the most effective and why? Propose a campaign to educate young people about digital copyright, outlining some of the issues and consequences for infringing copyright in Australia.
EX T EN DED R ES PON S E
‘Digital copyright is effectively protected in Australia.’ Critically evaluate this statement with reference to some of the legal efforts to protect digital copyright. Also discuss some of the non-legal responses to the issue and their effectiveness.
Marking criteria for the extended response question can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your response.
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Area 4 : Criminal or civil cases that raise issues of interest to students
CHAPTER 16
ke y t e r ms
c hap ter ob j e cti ve s
Drug testing
320
In this chapter, students will: s explore legal concepts and terminology in respect to drugs and drug testing s investigate the ability of the legal system to address issues relating to drug testing s explore the differences that exist between state and federal law in relation to drug testing s investigate the role of the law in addressing and responding to change in relation to drug testing s describe the legal and non-legal responses to drug testing s evaluate the effectiveness of legal and non-legal responses to drug testing.
illicit drug prescription drug legal drug privacy information privacy bodily privacy consent employment contract
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rel ev ant l aw IM PORTA N T L EGIS L AT ION AN D T R E ATI ES
Occupational Health and Safety Act 2000 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Privacy Act 1988 (Cth) Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW) Road Transport (Safety and Traffic Management) Act 1999 (NSW) Rail Safety Act 2008 (NSW) Defence Act 1903 (Cth) Australian Sports Anti-Doping Authority Act 2006 (Cth) Sports Drug Testing Act 1995 (NSW) SIGNIFIC AN T C AS ES
BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) [1998] WA IR Comm 130 Shell Refining (Australia) Pty Ltd, Clyde Refinery v CMFEU [2008] AIRC 510 Candido v Hi Fi Supermarket Pty Ltd [2003] AIRC 983
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Int roduc t ion Recent surveys in Australia indicate that drug use
of Australians aged 14 years or over used alcohol
is a regular part of life for many people. The most
at least weekly, 16.6 per cent were daily tobacco
common drug use in Australia involves legal drugs
smokers, and 13.4 per cent had recently used
such as caffeine, medicinal drugs, alcohol and
prohibited drugs such as cannabis. Over the past
tobacco. Although less common, statistics indicate
decade there has been a significant decline in
that a significant number of people have also used
the use of tobacco, but an increase in the use of
prohibited drugs at some point in their lives.
alcohol. The use of prohibited drugs has remained
For example, a 2007 study conducted by the
at a generally lower rate in comparison. The table
Australian Institute of Health and Welfare, a federal
below shows some of the statistics on recent drug
government agency, indicated that 41.3 per cent
use by people in Australia.
Table 16.1 Summary of drug use in Australia, 1993–2007 (as a proportion of the population aged 14 years or older) $RUGBEHAVIOUR
4OBACCO
29.1
27.2
24.9
23.2
20.7
!LCOHOL
77.9
78.3
80.7
82.4
83.6
12.7 1.7 0.9 0.3 0.4 0.6 0.2 n.a.
13.1 3.5 0.6 0.2 0.2 0.6 0.4 n.a.
17.9 5.2 3.0 0.2 0.3 0.9 0.8 0.2
12.9 3.1 1.1 0.2 0.2 0.4 0.2 0.1
11.3 3.1 1.0 – 0.2 0.4 0.2 0.1
9.1 # 2.5 # 1.4 # – 0.1 0.4 0.2 0.1
n.a. 2.0 0.5 1.3 1.2 n.a. n.a. 0.5 14.0
n.a. 2.1 1.0 1.8 0.9 n.a. n.a. 0.6 17.0
n.a. 3.7 1.4 3.0 2.4 n.a. n.a. 0.8 22.0
0.3 3.4 1.3 1.1 2.9 n.a. n.a. 0.6 16.9
0.2 3.2 1.0 0.7 3.4 0.3 0.1 0.4 15.3
0.2 2.3 # 1.6 # 0.6 3.5 0.2 0.1 0.5 13.4 #
21.0
17.8
14.2
14.7
13.7
14.1
82.9
LLLICITDRUGS Marijuana/cannabis Pain-killers/analgesics * Tranquillisers sleeping pills* Steroids* Barbiturates* Inhalants Heroin Methadone ** or Buprenorphine Other opiates/opioids* Methamphetamine (speed)* Cocaine Hallucinogens Ecstasy*** Ketamine GHB Injected drugs Any illicit .ONEOFTHEABOVE
* For non-medical purposes ** Non-maintenance *** This category included substances known as ‘Designer drugs’ before 2004. # Difference between 2004 result and 2007 result is statistically significantly (2-tailed
= 0.05).
Australian Institute of Health and Welfare, www.aihw.gov.au/publications/index.cfm/title/10579
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In the general sense a drug can be defined as any substance that alters bodily function, whether to treat or prevent disease or for other purposes. Of course, the effect on a person will depend on the nature of the drug itself and the quantity and
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circumstances in which it is used. A drug’s effects might be minimal or temporary, such as, for example, the stimulant effect of caffeine. However, in some circumstances, drugs can result in serious side effects or long-term health problems. Because of the negative effects of some drugs and the danger they can pose to users and the people around them, societies have developed laws over time to prohibit certain drugs or to restrict their use. More recently, technology has enabled testing for the presence of drugs in situations where the drug is prohibited or deemed unsuitable, for
Figure 16.1 A selection of mind-altering substances
example in the workplace, when driving a car or in some public places. This chapter looks at some of the laws and cases on drug testing in Australia and explores some of the issues relating to the application of those laws, and the effects of the laws on the individual and on society in general.
$RUGSANDTHELAW Certain drugs have been restricted or prohibited by societies since far back in recorded history. For example, one of the earliest recorded prohibitions was against the use of alcohol under Islamic sharia law, attributed to passages from the Qur’an from the seventh century CE. In Europe Pope Innocent VIII issued a prohibition on cannabis in 1484, and one of the first laws against smoking in public places was issued in 1632 in America by the Massachusetts General Court.
Figure 16.2 Even coffee has been prohibited at certain times throughout history.
Even coffee has been prohibited at certain times throughout history. For example in 1675 King Charles II of England, concerned that the
of Coffee Houses. The law called for the closure
increasing popularity of coffee in coffee houses
of all cafés and prohibited sale of coffee, tea and
across the kingdom was causing rebellion among
even chocolate. Not surprisingly, the law was
his people and producing ‘very evil and dangerous
so unpopular that the people forced the king to
effects’, issued a Proclamation for the Suppression
overturn it within just one week.
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Laws may restrict the sale, advertising or licensing of a drug, prohibit its cultivation or trafficking, or impose restrictions on the age of drug users or the places or situations in which the drug can be used. For example, tobacco is a type of legal drug whose use is subject to a number of conditions. A breach of these restrictions will generally result in a fine. Some of the current laws in Australia and New South Wales that impose conditions on the sale or use of tobacco include: s a prohibition on advertising tobacco products – Tobacco Advertising Prohibition Act 1992 (Cth) s compulsory health warning labels on cigarette packs – Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 (Cth) s higher taxes on cigarettes – Excise Act 1901 (Cth) s making it an offence to sell cigarettes to persons under 18 years old – Public Health Act 1991 (NSW) s a prohibition on smoking in enclosed public places – Smoke-free Environment Act 2000 (NSW). With respect to illicit drugs, different laws will apply depending on the type of drug and the
circumstances.
Criminal
offences
range
from minor summary offences to more serious indictable offences, with corresponding penalties from a recorded conviction or a small fine to life Figure 16.3 King Charles II of England attempted to prohibit coffee in 1675.
imprisonment. Prohibited activities include use of certain drugs, possession of specified amounts, cultivation, trafficking and importation. Types of offences and the laws in which they are contained
legal drug a drug that is not prohibited under the law, although some other restrictions may apply prescription drug a type of legal drug that can be obtained only by a doctor’s prescription illicit drug also called an illegal drug; a drug that is prohibited by law
324
Australia today has both federal and state
include:
legislation relating to drugs, as well as local laws.
s illicit drug offences under New South Wales
These laws cover various social aspects of drug use
state law, including a list of prohibited drugs –
and address issues including such as the trade and
Drug Misuse and Trafficking Act 1985 (NSW)
supply of drugs, use and possession of drugs, and access to or treatment with medicinal drugs. The laws will differ depending on whether the drug is a legal drug, for example aspirin, caffeine,
s importation of illicit drugs, including a list of prohibited drugs – Customs Act 1901 (Cth) and Customs (Prohibited Imports) Regulations 1956 (Cth)
tobacco, or alcohol; a prescription drug such as
s trafficking of illicit drugs – Crimes (Traffic in
birth control, antibiotics or anti-depressants; or an
Narcotic Drugs and Psychotropic Substances) Act
illicit drug such as cannabis, heroin or ecstasy.
1990 (Cth).
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2 %3%!2 # ( There are several international treaties relating to drugs. Go to the Australian Institute of Criminology website (www.
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aic.gov.au/research/drugs/
Figure 16.4 Australian laws impose many restrictions on tobacco products.
international/treaties.html), list the treaties to which Australia is a party, and for each treaty, answer the following questions: 1 What are its aims? 2 Does the treaty focus on the possession, use, or sale of drugs, or on other activities involving drugs? 3 What kinds of drugs does it
Figure 16.5 Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 148, police do not need a warrant to use sniffer dogs to detect drugs in pubs, at entertainment events and on public transport in New South Wales.
deal with? 4 What methods does it use to achieve its aims? 5 How many nation-states are parties to the treaty?
$RUGTESTING
of the testing, the practical limitations of the equipment being used and the costs
Many drugs, both legal and illicit, can
associated with testing will determine
alter perception, emotion, judgment or
what tests are carried out. The methods
behaviour and as a result can interfere
used have varying levels of accuracy and
with the way a person carries out tasks
instrusiveness. They include:
2 %6) %7
such as playing sport, driving a car
s surveys or questionnaires
1 How common is drug use in
or completing work duties. Driving a
s interviews or clinical observation
car under the influence of alcohol or
s assessment of a person’s clothes or
operating heavy machinery under the
belongings, using sniffer dogs or scan-
influence of cannabis, for example, can
ning equipment
endanger both the person and others. This is one of the reasons that law enforcement agencies, employers and
s testing of bodily tissue (skin, hair, nails) s testing of bodily fluids (breath, saliva,
Australia? What types of drug use are most common? 2 Describe some of the history behind drug laws throughout the world. What types of drugs have been restricted by the law and why? 3 What are some of the laws
others have begun to test individuals
blood, urine or sweat).
for the presence of drugs in particular
Technological advances in drug test-
circumstances, in order to deter or
ing methods now enable more accurate
prohibit drugs? What are some
penalise their use.
results than in the past.
of the penalties that can apply
in Australia that restrict or
for not complying with the
The drugs for which people may
The legal implications of testing will
be tested include legal drugs such as
depend on the method used and the
alcohol, prescription drugs and over-
reasons that justify the testing. This can
4 What are some of the methods
the-counter
and
touch on areas of both criminal and civil
used for drug testing and in
illegal drugs such as cannabis, cocaine,
law and raises issue of consent, necessity,
what situations do you think
amphetamines and heroin. The purpose
privacy and broader social policy.
they might be used?
pharmacy
drugs,
laws?
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- E C H A N I S M S F O R A C H I EV I N G J U S T I CE I NDRUGTES T I NG Drug testing has been introduced or considered in
4ESTINGMOTORVEHICLEDRIVERS
many different areas over the past two decades.
Probably the most visible instance where drug
These are discussed in detail below.
testing is used is for motor vehicle drivers. Safety on the roads is cited as the primary reason for
,EGALRESPONSES
testing in this situation.
Drug testing can be seen as an intrusive act. For
by the police force, and any state or territory
this reason, in many instances where it has been
police officer in Australia can require a person
introduced, laws and policies have had to be
driving a motor vehicle to undergo a roadside
adapted, both to permit the testing and to provide
breath test to determine whether there is more
a clear and transparent process to follow.
than the permitted concentration of alcohol in the
Changes to the law will depend on the context
As this is an area of criminal law, it is enforced
blood. More recently, some states and territories,
of the drug testing. For example:
including New South Wales, have introduced
s Roadside testing of motor vehicle drivers might
random drug testing to identify drivers under
require a change in police powers and the
the influence of other drugs, such as cannabis,
introduction of new driving offences.
ecstasy, speed or some prescription drugs that can
s Different government employers might require
impair driving ability. In 2006, the Road Transport
changes to their statutory powers to allow them
Legislation Amendment (Drug Testing) Act 2006
to test certain employees for drugs.
(NSW) was passed to amend the Road Transport
s Private sector employers might require changes to their staff employment contracts or the introduction of new policies and guidelines.
(Safety and Traffic Management) Act 1999 (NSW). This authorised random testing of drivers. The testing will usually involve two stages: a preliminary oral fluid test plus a secondary test to confirm the results. Where a driver’s behaviour suggests impaired driving ability, police may order the driver to undergo more intrusive testing by a medical officer, such as testing samples of blood and urine. Penalties for returning a positive reading can vary depending on the circumstances and the drug, including fines, suspension of licence or even a prison sentence. In May 2009, NSW police reported that 34 335 motorists had been tested, 757 tested positive for illicit substances, and 598 were prosecuted in court. Of those prosecuted, approximately 98 per cent had convictions recorded against them. Given these results, and the safety implications for all people using public roads, there appears to be general public approval of this type of drug testing, provided that the process and
Figure 16.6 ACT Police Breath Testing/Command truck
326
methods used are fair and transparent.
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4ESTINGEMPLOYEESINTHE WORKPLACE As Australia has no national comprehensive drug strategy or legislation governing employers’ approach to drugs, the issue of drug testing in the
L aw in p rac tic e
workplace is largely governed by occupational health and safety legislation, which varies from state to state. JUSTIFIC AT ION S F OR WOR K PL AC E D RU G TESTING
Four main reasons are commonly cited to justify testing individuals for the presence of drugs in the workplace. Whether these reasons are fair and just would need to be assessed according to the
Figure 16.7 Workplace safety is one reason put forward to justify random drug testing in the workplace.
particular workplace context and the extent of the testing proposed. They are: s safety of the individual and others
absenteeism, as well as the costs of health care or
s productivity of an organisation or individual
workers’ compensation.
s health of individuals using drugs s integrity or reputation of the company or the group to which the individual belongs.
Health: The current or long-term mental or physical health of the individual may be used as a reason for drug testing, especially in schools, sport
Safety: The primary reason for drug testing in the
and the workplace. Drug testing might be used to
workplace is safety – ensuring that employees are
identify individuals who may need help with drug
fit to carry out their duties. This is especially so in
dependency or other health problems related
jobs where health or even lives can be put at risk
to their drug use. A significant question here
if employees are not alert, such as those involving
is whether the health of the individual is rightly
the operation of vehicles or equipment requiring
the concern of an outside party or whether it is a
precision. The use of drugs that impair judgment
private matter for the individual.
poses a risk to the user’s own safety and to the safety of other employees and/or customers or the
Integrity: One final justification for conducting
general public.
drug tests relates to the integrity and reputation of
In New South Wales, under the Occupational
the company or organisation to which the indi-
Health and Safety Act 2000 (NSW) s 8, employers
vidual belongs. For example, over the past few
have a general duty to ensure the health, safety
decades, many athletes have returned positive test
and welfare of their employees while they are
results for performance-enhancing and other illicit
at work. Employers often point to this duty to
drugs. As a consequence, some sporting associa-
justify the introduction of workplace drug testing
tions have claimed, their sponsors or the general
programs.
public are likely to have negative perceptions of their sport or association. Similarly, some com-
Productivity: Another reason often cited for
panies, organisations, government bodies or even
carrying out random drug testing in the workplace
schools may be concerned that reports of
is that by helping to identify workers who are using
employees’ or students’ drug use will affect their
drugs, it can reduce the cost of time lost due to
reputation and the way their work practices,
the effect of drugs, accidents in the workplace, and
culture, discipline or performance are viewed.
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EMPL OY EES ’ R IGH T S
workplace policies are just. A few of these cases
Employees themselves, however, may see this test-
will be considered later in this chapter.
ing as an infringement of their rights and an invasion
Workplace drug testing might be performed by
of their privacy. This is especially the case where
or on behalf of public or private sector employers
more intrusive methods of drug testing are pro-
or by the relevant government regulatory bodies
posed, such as saliva or blood and urine samples.
for the industry. For example, drug testing of
Other important issues are:
coal mine employees might include drug testing
s Who is to be tested: for example, whether it is
by mining companies or by the New South Wales
targeted at one individual or random testing
Chief Inspector of Coal Mines. Some of the
across the entire workforce
industries where drug testing is carried out are
s When and where: the time and place of testing,
outlined below.
for example at work or home, in private or in front of other people s Refusal: what happens when a person refuses to take a test or cannot take a test
RA I LWAY EM PL O YE E S
Employees of the State Rail Authority in NSW may be subject to drug testing under the Rail Safety
s Information: what is done with the information
(Drug and Alcohol Testing) Regulation 2008 (NSW).
received and how long this information can be
The most significant reason for this testing is
kept
the safety of drivers, passengers and the general
s Penalties: whether the penalties that apply are reasonable or too harsh
public, given the high possibility of danger should something go wrong.
s Review: the reliability and independence of
Employees carrying out ‘rail safety work’, as
the tests and whether a person has a right to
defined in s 7 of the Rail Safety Act 2008 (NSW),
complain or review the process.
include drivers, signal operators, workers who
If a company fails to consider these issues from
couple or uncouple trains, those whose work is
the perspective of its employees, the introduction
maintenance, repair, or inspection of trains, equip-
of drug testing in the workplace can result in
ment or infrastructure, and those who manage
civil action. Some of the court judgments arising
and monitor safe working systems or passenger
from these circumstances have served to clarify
safety. All of these employees are be subject to the
the processes that can be used to ensure that
regulation. These employees can be randomly
Figure 16.8 Two common areas in which random drug testing is conducted
328
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tested before or during their shifts where there is
A person may also be required to undertake a drug
reasonable cause to believe that there are drugs in
test before appointment or enlistment.
their system, or where the employee has been involved in an accident.
A I RL I NE E M P L O YEES
AUSTRAL IAN DEF EN C E F OR C E
testing of some employees, particularly flight and
All members of the armed services in Australia
cabin crew. Recent events have also resulted in
are subject to some form of drug testing. Again the
the Commonwealth Civil Aviation Safety Authority
safety of the employees and the general public is
considering the introduction of new civil aviation
the primary concern, in addition to integrity and
regulations, to permit drug testing of employees
the Defence Force’s reputation nationally and
in safety-sensitive areas, including air traffic con-
internationally.
trollers, baggage handlers, refuellers and other ground staff. The media clip below illustrates
drug testing of all armed services personnel as
some of the issues that might be considered under
part of the Prohibited Substance Testing Program.
these laws.
med i a cl i p
Part VIIIA of the Defence Act 1903 (Cth) authorises
Aviation sector faces widespread drug testing by Andrew West The Age, 13 May 2009
Pilots, air traffic controllers and baggage handlers will be subject to random tests for drug and alcohol use under a new system to be phased in by Australia’s air safety regulator this month. The Civil Aviation Safety Authority will begin testing ‘safety-sensitive personnel’ who are involved in the control or maintenance of aircraft. CASA estimates the new regulations will cover up to 120 000 pilots, flight attendants, aircraft engineers, refuellers, flight controllers and ground staff. ‘It’s been in the pipeline for several years,’ a CASA spokesman, Peter Gibson, said. ‘The scope is, quite intentionally, fairly wide to include anybody who could have a safety impact on the aircraft.’ Mr Gibson said baggage handlers were also included in the testing because they had regular contact with aircraft on the tarmac. ‘This will occur at Sydney Airport, or at Bourke, or anywhere there is safety-sensitive activity,’ he said.
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Some Australian airlines conduct pre-employment
Under the system, any staff member of an airline, government agency, engineering or ground services company found with a blood alcohol level of more than 0.02 per cent, or any trace of drugs, would be immediately stood down. The worker would have a second test and see a doctor for an assessment. If a doctor detects a dependence problem, the employee will enter rehabilitation. Staff whose misuse of drugs or alcohol is assessed as one-off or out of character will be able to return to work after a brief break. Offenders may also face fines up to $5500. The decision to introduce widespread random testing came after a plane crash on Hamilton Island in 2002 left six people, including a family of four from New Zealand, dead. Police later found cannabis and smoking utensils in the pilot’s car. Mr Gibson said all companies involved in the aviation industry would have to introduce drug- and alcohol-management plans for staff and rehabilitation for affected staff. ‘All the key players in the industry have signed up,’ he said. Unions representing the pilots and air traffic controllers support the testing, which will be carried out on site by the pathology company Symbion.
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2%6)%7
4ESTINGOFATHLETES
that tend to impair work performance.
1 What are some of the main
Drug testing of professional athletes,
The reasons for testing include ethical and
reasons why employers and the
such as rugby league players, could be
practical concerns about fair play between
public might want to introduce
considered
workplace
competitors, the reputation of teams and
workplace drug testing?
drug testing. Drug testing for amateur or
sporting codes, and the health and safety
2 What are some of the most
semi-professional athletes is generally
of individual players and the fans who look
important issues for employees
a matter for individual clubs or sporting
up to them. As a result many governing
who are facing a drug test?
associations. The National Anti-Doping
sporting bodies have adopted drug testing
3 What types of workplace are
Scheme governs drug testing required
in order to prevent so-called drug cheats
subject to drug testing in
of athletes who have been selected to
and improve the integrity of their sports.
Australia and do you think
compete as representatives of Australia in
The laws on drug testing in sport are
it is justified? What other
international sporting competitions. The
generally different from those governing
workplaces do you think
body that administers the scheme is the
drug testing in the workplace. They include
should consider drug testing of
Australian Sports Anti-Doping Authority
state and federal legislation about testing
employees?
(ASADA), established by the Australian
standards and often incorporate codes
Sports Anti-Doping Authority Act 2006 (Cth).
and policies drafted by individual sporting
drug testing and answer the
It has the power to investigate anti-doping
associations, such as those the sporting
following questions:
rule violations, make recommendations
codes of football leagues. Independent
a Why is the Civil Aviation
on its findings, and present cases against
bodies, such as ASADA and the Australian
alleged offenders at sport tribunals.
Sports Drug Medical Advisory Committee,
4 Read the article on airline
Safety Authority proposing
a
category
of
The term ‘doping’ refers to the use of
assist in educating, setting standards,
b Which airline and airport
a drug to improve athletic performance,
conducting and reviewing sports drug
employees might have to
and drug testing of people in sport
testing.
undergo the proposed tests?
involves some different issues from
The
to introduce drug testing?
Australian
Sports
Anti-Doping
those usually present in the workplace.
Authority Act 2006 (Cth) was amended in
employee tests positive to a
It usually focuses on the detection of
2008 to bring it into compliance with the
drug test?
performance-enhancing drugs, such as
World Anti-Doping Code.
c What happens if an
anabolic steroids, rather than on drugs
In New South Wales, the Sports Drug Testing Act 1995 (NSW) contains provisions for drug testing of persons who participate in sporting activities receiving funding from the state, or under a program administered by a body that receives funding from the state.
4ESTINGINSCHOOLS Reasons often offered for drug testing in schools are the immediate and longterm health of students, and the safety of students in the school environment. There is little evidence that drug testing is or has been used in Australian schools Figure 16.9 Even swimming stars such as Grant Hackett are subjected to rigorous drug testing to ensure fair competition.
330
to date, although it is widespread in the United States. The issues and laws are different from those applicable in sport
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or the workplace, as the vast majority of persons
considerations, the report concluded that drug
who would be affected by drug testing in schools
testing of students is not appropriate for Australian
are minors – that is, people under 18 years of age.
schools. The ABC News media clip below discusses
While the school has a duty of care to protect its
some of the issues raised in the report.
Australia strict laws of privacy apply to protect individuals’ rights. In 2008 a federal government report by the Australian National Council on Drugs thoroughly investigated the advantages and disadvantages of drug testing in Australian schools. After looking at
L aw in p rac tic e
to consent to certain invasions of privacy. In
legal links
students, persons under 18 lack the legal capacity
A copy of the report Drug Testing in Schools is available on the website of the Australian National Council on Drugs: www.ancd.org. au/assets/pdf/rp16_drug_ testing_in_schools.pdf
m ed i a cl i p
all the issues, including the relevant legal and ethical
2 %6) % 7
School drugs test a ‘waste of money’
1 What are some of the
by Michael Turtle
main reasons for drug
ABC Online, 26 March 2008
testing in sport? Do you agree?
A year-long study from the federal government’s advisory group on drugs has found drug testing in schools would be a waste of money. The report was commissioned by the Australian National Council on Drugs after debate in the community about compulsory drug testing in schools. It found that any testing system would be ineffective and not always give the right results. Report author Ann Roche says it would also have negative effects like creating mistrust and stigma. ‘Level of use is actually quite low so you’re kind of looking for a needle in a haystack, therefore there’ll be more error,’ she said. ‘To falsely accuse a young person of illicit drug use is really problematic.’ The study found it would cost about $350 million to do a saliva test for every student in the country and it says that money could be better spent elsewhere. New South Wales Education Minister John Della Bosca says he agrees with the report’s recommendations. Mr Della Bosca says it would also be monumental waste of taxpayer funds. ‘Fewer than 2 per cent of our suspensions and expulsions were resulting from drug use or drug selling in schools,’ he said. ‘If students are suspended for using or possessing drugs at school, part of their return to school program will involve anti-drug counselling. This is a far more effective way of dealing with illicit drug use.’
2 Do you know of any cases in the media where athletes have been accused of drug use? How do you think the legal and ethical considerations mentioned above in the context of drug testing in sport might apply to the case? 3 What are some of the legal issues relating to drug testing in schools? 4 Do you think that drug testing in schools is necessary or appropriate?
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privacy a person’s right to be free from unwanted intrusion or public scrutiny
/THERLEGALRESPONSESTO DRUGTESTING When drug testing is to be carried out, there are
protect information relating to individuals. These
information privacy protection against inappropriate handling of a person’s personal information, with rules for the collection and handling of personal data and records
three parties to be considered: the person being
principles relate to the collection, storage, access
tested, the person (or organisation) carrying out
to, accuracy of, use and disclosure of information.
the testing, and the general public. Parties’ rights
It
and obligations can come from specific legislation.
allow cases to be reviewed by the NSW Privacy
In sport, they can also come from sporting
Commissioner. The agencies bound by the Act
codes of conduct. Relevant areas of law include
include state government departments, statutory
bodily privacy protection from physically invasive procedures without the person’s consent
employment law and criminal law.
authorities, the police, and local councils.
consent free and voluntary agreement by a rational person who is able to understand and make a decision about the matter to which he or she agrees
In New South Wales, the Privacy and Personal Information Protection Act 1998 (NSW) sets out 12 Information Protection Principles (IPPs) to
also
provides
complaint
mechanisms
to
The main federal law protecting privacy of
0RIVACYANDCONSENT
personal information is the Privacy Act 1988 (Cth).
Australian privacy laws offer some protection
It offers similar protection as the NSW Act. Eleven
to individuals required to undergo a drug test.
IPPs apply to Commonwealth and Australian
Several different types of privacy are relevant to
Capital Territory government agencies that collect
drug testing:
information about individuals. Ten further IPPs
s information privacy – including rules about
apply to certain private companies (for example,
the collection and handling of personal data
credit providers and credit reporting agencies,
and records
which have access to individuals’ personal tax file
s bodily privacy – protection from physically
numbers) and to all health service providers.
invasive procedures, such as blood or saliva
mation that a person sends or receives, such as mail, e-mail or phone conversations s territorial privacy – limits intrusions into certain environments, for example video surveillance,
l eg al l i nks
tests, without the person’s consent s privacy of communications – protects infor-
Privacy NSW is the office of the New South Wales Privacy Commissioner. It provides advice to employers and individuals
searches or identity checks in the workplace or
on privacy issues and privacy
in the home.
complaints: www.lawlink.nsw.gov. au/lawlink/privacynsw/ll_pnsw. nsf/pages/PNSW_index
Central to the question of whether a person’s right to physical privacy or to information privacy has been breached is whether the person freely consented to the physical procedure or the disclosure of information. An individual’s right to bodily privacy is entrenched in both the common law and legislation in the form of prohibitions on criminal assault. It is also implied by the tort of trespass to the person. The law may consider Figure 16.10 Physical and information privacy are two issues linked to drug testing.
332
a breach of a person’s bodily privacy to be an act of assault or trespass unless that individual has
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voluntarily consented. Only in rare circumstances can a lawful invasion of a person’s bodily privacy occur without this consent, for example in some situations of medical emergency where that person is unconscious or otherwise incapable of
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consenting. Drug testing cannot be forced on an individual and any process for drug testing of individuals must consider and comply with legal requirements for consent. The most difficult issue for organisations conducting drug testing is what to do when a person refuses to consent to testing. (For example, should an athlete’s refusal result in an immediate penalty or suspension?) The way an organisation deals with refusal to consent will depend on its
Figure 16.11 In some sectors, drug testing may become part of the interview process.
rules relating to drug testing. agreed to this when they first accepted the job.
%MPLOYERANDEMPLOYEERIGHTS In addition to the issues of privacy and consent, the rights of an employee are protected by his or her employment contract. This may be a collective agreement negotiated by the employees at a company or by their trade union, or an individual contract applying to the individual worker. Workplace agreements are legal and binding contracts and require both parties to abide by
Discussion with unions when drafting appropriate policies can strengthen an employer’s justification for instituting drug testing programs. As mentioned earlier in this chapter, drug policies are often instituted under the occupational health and safety (OHS) policy of a workplace. In NSW, the Occupational Health and Safety Act 2000 (NSW) contains obligations upon employers to en-
employment contract a contract between an employer and employee(s) which sets out matters including the pay, hours, working conditions, benefits and obligations of the employee and the rights and responsibilities of the employer
sure that the workplace is safe and fit to work in.
Where there is a requirement not to use certain drugs at or away from work, or where drug testing is a requirement of employment in a workplace, this will often be a term of an employment contract. The contract will form the basis of an employee’s agreement to those terms when the employee first joins that particular workplace.
l e g al l i nks
their conditions.
WorkCover NSW is responsible for overseeing occupational health and safety laws in New South Wales. Information on OHS laws can be seen on their website at www.workcover.nsw.gov.au
Where workers in a particular industry belong to a union, the union can assist employees in negotiating fair workplace conditions. Unions usually have more power than individual employees
2 %6 ) %7
to change or negotiate employment terms, and
1 Describe and evaluate the ways that
can often provide the most security against such
employees are protected against random
things as dismissal where an employee refuses to
drug testing in the workplace.
take a random drug test or tests positive. For employers, employment contracts will
2 How are employers’ rights protected? 3 Propose a constructive approach to a
often form the basis for justifying the use of
workplace drugs and alcohol policy. What
drug testing, as it can be claimed that employees
would you include in the policy and why?
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.ON LEGALRESPONSESAND ORGANISATIONS
about the way a policy is being implemented, or help to persuade organisations to change or update their drug testing policies if required.
When the introduction of drug testing in a workplace is proposed, a number of factors outside the law
#OMMERCIALRESPONSES
may need to be considered. These might include the
Another area of relevance is the emergence in
degree of employee or community support for the
recent years of a market in drug testing. A number
proposal, and whether there are other alternatives
of companies in the commercial sector now offer
available such as targeted education programs
drug testing and consultancy services, for example
about drugs and workplace safety, peer support,
assistance in legal compliance and drafting of drug
employee assistance or counselling programs for
testing policies. In addition, the manufacturers and
people affected by drugs. Other agencies may be
retailers of commercially available drug testing
helpful in assessing the benefits and drawbacks of
products have an interest in the introduction
drug testing, and in addressing drug issues in other
of compulsory drug testing in the workplace.
ways. These include trade unions, commercial
Commercial interests may also include the interests
interests, the media, or interested governement
of the company or organisation itself in promoting
and non-government organisations.
or being seen to promote productivity in the workplace. Commercial interest is an important
#OMMUNITYSUPPORT
consideration in the growth of drug testing in the
Community reaction is important when considering
workplace and should always be carefully weighed
drug testing. As discussed at the beginning of
against the real necessity or reasonableness of the
this chapter, the community would be unlikely to
testing in each individual case.
support, for example, a prohibition on caffeine or of these substances. Public support of drug testing proposals can often be critical to their success. For example, in a 2004 survey conducted by the Australian Government Office of the Privacy Commissioner, respondents were asked about their attitudes toward random
leg al l i nks
aspirin, or the testing of individuals for the presence The following company is an example of an Australian laboratory that conducts drug testing services for Australian businesses. Visit the website and consider how the laws
drug testing. Of the respondents, 16 per cent said that
you have learnt about apply:
drug testing of employees was never appropriate.
www.medvet.com.au/drug_
The majority of respondents (59 per cent) saw
testing/services.php
random drug testing as appropriate only where necessary to ensure safety, and only 23 per cent of respondents suggested that drug testing was appropriate whenever employers chose.
4HEMEDIA A further consideration, especially where issues
334
4RADEUNIONS
of integrity and reputation are important, is the
As discussed above, trade unions can play an impor-
media. The media can play an important role in
tant role in negotiating employment contracts and
informing the public attitude toward drug testing,
workplace drug testing policies. Unions may be able
and media coverage, both positive and negative,
to provide additional support such as mediation or
can be important in encouraging or discouraging
counselling services, provide a voice for concerns
its spread.
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significant impact on the perceived integrity of high-profile sports figures or sporting clubs. While the exposure and condemnation of illicit drug use can be considered a positive consequence,
The Australian National Council on Drugs, as mentioned above, provides advice and advocacy to government and the public on drug-related issues and is
media coverage and commentary can also have
influential in shaping national drug
a detrimental effect on clubs or even individual
policy: www.ancd.org.au
careers, especially where allegations of drug use
The Australian Drug Information
cause long-lasting damage to reputation but are
Network (ADIN) serves as a central
not based on factual evidence.
point of access to alcohol and drug
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respect to drug testing in sport. It can have a
legal links
Media coverage is especially influential with
information provided by prominent
'OVERNMENTANDNON GOVERNMENTORGANISATIONS A number of government and other organisations
organisations in Australia and internationally: www.adin.com.au The New South Wales Road
are instrumental in providing research, com-
Transport Authority provides
mentary, advice or assistance for the public and
information and advice in relation
for the parties involved. In addition to the NSW
to roadside drug testing of motor
and federal Privacy Commissions and WorkCover
vehicle drivers:
NSW, some other organisations are listed in the
www.rta.nsw.gov.au
‘Legal links’ box on the right.
2ES P O N S I VE N ESS O F T H E L AW As we have seen, there are a number of ways in
the full extent of this practice and the effectiveness
which the Australian legal system addresses drug
of current laws in protecting the parties’ interests
testing.There is legislation prohibiting or restricting
are difficult to measure. Particularly in the private
certain drugs and creating offences for certain
sector, the extent to which drug testing practices
dealings with those drugs. There is legislation
are routinely carried out is not clear, especially
relating to drug testing in individual workplaces,
where drug testing is carried out by a company
for example in the Australian Defence Force or the
before the person actually begins working for it.
NSW State Rail Authority. Drug testing in sports
While technological methods for performing
is overseen by a different legislative regime and
drug tests have improved, there is little evidence
advisory bodies, as well as individual sporting
as to their effectiveness in deterring drug use or
codes and sporting tribunals. For other workplaces,
preventing injury or crime. For example, a 2006
more general laws relate to issues of information
review by the NSW Ombudsman into the use of
privacy and bodily privacy, especially in relation
sniffer dogs, titled Review of the Police Powers
to consent.
(Drug Detection Dogs) Act 2001, found no evidence
While it is clear that workplace drug testing in
that sniffer dogs deterred drug use or reduced
New South Wales is being carried out by various
drug-related crime. The review also found that
organisations in both the public and private sectors,
sniffer dogs were only successful in targeting drug
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2/9/09 8:05:16 PM
ca s e s p a ce
dealers in 1.4 per cent of cases: in other words,
have been able to provide some guidance on
they targeted mostly recreational users, and only
best practice in the use of drug testing programs.
by chance might they detect a supplier.
The following case illustrates the importance of
For employers and employees one of the most
consultation with employees when drafting a drug
important methods of oversight is provided by
testing policy. It was one of the first Australian cases
state and federal industrial relations systems that
involving compulsory drug testing in the workplace.
cover disputes between employers and employees.
It was brought before the Western Australian
Judgments of these industrial relations tribunals
Industrial Relations Commission in 1998.
BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) ;=7!)2#OMM The employer, a mining
compulsory drug testing scheme
company, wished to introduce
implement the program to meet
rather than having to wait until
a drug testing program for all
its obligations under the Mining
a staff member showed signs of
employees. While it had sought
Safety and Inspection Act 1994
impairment to test him or her.
the input of employees and most
(WA), which prohibited a person
With respect to the invasion
of the employees had agreed
being in a mine while under the
of privacy, it was noted that
to the program, the union was
influence of alcohol or drugs, and
safeguards against wrongful
opposed to it. The union argued
its OHS duty to maintain a safe
use of the test results had been
that there was no evidence that
workplace.
put in place and that BHP had
such a drastic program was
336
BHP argued that it needed to
The Commission found that
agreed to review the policy if
needed, as there had been no
BHP’s proposed drug testing
new technologies allowed for less
drug-related incidents, and a
program was reasonable. BHP
intrusive testing methods.
positive urine test did not reliably
had undertaken a consultation
indicate actual impairment on the
process, and the policy was
job. They said the drug testing
acceptable to the majority of
constituted an unreasonable
employees. The Commission
intrusion into the privacy of the
also considered it reasonable for
employees.
the company to put in place a
More recent cases have tested the fairness and
In another important case from the AIRC,
consistency of random employee drug testing
Shell Refining (Australia) Pty Ltd, Clyde Refinery v
policy. For example, in 2003 in the case Candido
CMFEU [2008] AIRC 510, the relevant union, while
v Hi Fi Supermarket Pty Ltd [2003] AIRC 983, the
not disputing the role played by drug testing in
Australian Industrial Relations Commision (AIRC)
workplace safety, argued that the testing of urine
ruled that the dismissal of a salesperson for
samples detects drug use over a longer period
smoking marijuana at work was unfair because the
than did oral samples – not merely recent use.
two other employees caught smoking marijuana
Impairment resulting from drug use tends to last
were only given a warning.
for hours, not days. Therefore, urine samples could
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L aw in p rac tic e Figure 16.12 BHP won the right to drug test their employees to ensure their safety when at work.
be seen as an unnecessary invasion of privacy and
method is available. Saliva testing
2 %6) %7
saliva samples should be sufficient. Shell’s position
both indicates actual impairment
1 Explain why it is difficult to
was that the policy was designed to address
and is unlikely to detect drug use
assess the effectiveness of
habitual drug use as well as actual impairment,
having no effect on employees’
drug testing laws.
and that urine testing provides more information.
performance. In the same case, the
2 What are some of the recent
The AIRC held that because urine testing has a
Commission also found that it was
cases involving drug testing
longer ‘window of detection’, which may interfere
appropriate for Shell to conduct
in the workplace and what
with employees’ privacy, it would be unjust and un-
drug testing for some employees
are the main points arising
reasonable to use that method when a more precise
and not others.
from these judgments?
Co nc l u s io n Drug testing continues to be an area of concern
Where drug testing policies are introduced,
for many Australians. As it is a relatively recent
care is required to ensure that the reasons for the
practice, states have attempted to adapt existing
policy are clear and justified, that the methods
laws such as those relating to privacy and consent
and processes are carefully considered, that
in order to afford protection for the parties
consultation and monitoring take place, and that
involved. Where laws have not been adequate,
the consequences of a positive test result are fairly
both legislators and the courts have acted to ensure
applied. As technologies evolve and drug testing
that drug testing policies remain fair, protect all
expands into different areas of society, the law will
the parties’ interests and decrease the incidence
continue to develop to provide greater clarity in
of disputes.
relation to parties’ rights and obligations.
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Ch a p te r s u m m a ry M u lt i p l e- c hoi ce q ues ti ons 338
s Use of many different types of drugs is common in Australia, some of which are restricted or prohibited by law. s Drug testing has arisen as a way to prevent some of the negative effects of drug use. s Drug testing laws differ depending on the context. s In the workplace, safety, productivity, health of employees and company reputation are the main reasons offered for drug testing. s Issues of concern include privacy considerations and employees’ rights, especially if companies are thought to be implementing drug testing as a way of exerting control over their employees.
What are illicit drugs? A drugs that the law restricts B drugs that you can only buy with a medical prescription C drugs that the law prohibits D all of the above For what reasons might employers randomly test workers for drugs? A to keep samples of workers’ DNA on file B to see whether workers are able to carry out their work duties responsibly and safely C to abide by laws set down by the government D to show workers that drugs are not acceptable in the workplace Which of the following is NOT a reason for drug testing in sport? A to ensure that no athlete enjoys an unfair advantage provided by performanceenhancing substances B to protect athletes’ health and safety C to protect sporting clubs’ reputation and integrity D to ensure that professional athletes are earning no additional income from illicit drug dealing
s Drug use in sport is different from other contexts, in that prohibited substances are used to enhance performance. s Drug testing in Australian schools is generally believed to be unnecessary and inappropriate. s Non-legal considerations relating to drug testing include community support, the views of employees and their unions, and commercial interests. s It is difficult to judge the effectiveness of drug testing and the applicable laws, but the courts have been able to provide some guidance on best practice.
Which type of privacy is most important to consider in drug testing? A territorial privacy B bodily privacy C privacy of communications D information privacy What issue was the dispute about in Shell Refining v CMFEU? A whether employees could take recreational drugs on their holidays B whether all employees should be tested C whether urine or oral samples should be tested D whether all employees should be tested and whether urine or oral samples should be tested
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Ch a p te r s u m m a ry ta s k s Top i c revi ew
Construct a table that shows some of the most important considerations for employees and employers in drug testing. Outline some of the rights and obligations for each party and describe the basis of these rights and obligations. Explain how you would go about formulating a workplace drug and alcohol policy. What would it include and how would you notify workers about this policy?
Investigate a workplace where drug testing is used. Write a report of your findings including arguments for and against the testing, any legislation that applies and any other issues. Evaluate the need for drug testing in various social contexts. Do you think the police should become involved if someone tests positive to a drug test? Justify your answer.
EX T EN DED R ES PON S E
‘The technology of drug testing is being permitted to shape the limits of human privacy and dignity. The situation should be the other way around.’ Evaluate this statement, drawing on arguments for and against random drug testing. Evaluate the effectiveness of the legal system in achieving justice for both employees and employers in the area of random drug testing.
Marking criteria for the extended response questions can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your responses.
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Pa rt I
Answers to multiplechoice questions
C H APT ER 1
C H A P TER 4
1a 2b 3c 4c 5c
1c 2b 3b 4b 5c
C H APT ER 2
C H A P TER 5
1 a 2 b 3 c 4 d 5 c 6 b and c 7 a 8 b 9 b and d 10 d
To pi c 1 – 1 a 2 b 3 b 4 a 5 b To pi c 2 – 1 c 2 d 3 b 4 b 5 d To pi c 3 – 1 d 2 a 3 c 4 b 5 b
C H APT ER 3
P art I I
1b 2b 3a 4a 5c
C H APT ER 6
1c 2a 3c 4c 5d C H APT ER 7
1b 2a 3c 4c 5a C H APT ER 8
Pa r t I II
1b 2b 3d 4b 5d
340
1c 2c 3c 4c 5c
CH A P TER 1 3 1c 2a 3b 4d 5a
C H APT ER 10
C H A PTE R 1 4
1d 2c 3b 4d 5d
1a 2c 3a 4d 5d
C H APT ER 11
C H A PTE R 1 5
1c 2c 3b 4b 5a
1c 2c 3a 4d 5b
C H APT ER 12
C H A PTE R 1 6
1b 2d 3c 4c 5d
1c 2b 3d 4b 5d
C H APT ER 9
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Glossary
9/11 a term used to describe the terrorist attacks in the United States on 11 September 2001; otherwise known as September 11 access the right or opportunity to make use of something Act of Parliament Statute law, resulting from a bill successfully passing through parliament and gaining royal assent adoption order a court order that establishes a new legal relationship between potential adoptive parents and a child eligible for adoption. It also severs the legal relationship that existed between the adoptive child and his or her natural or legally recognised parents or guardians prior to the adoption process. adversarial system a system of resolving legal conflicts, used in common law countries such as England and Australia, that relies on the skill of representatives for each side (e.g. defense and prosecution lawyers) who present their cases to an impartial decisionmaker Al Qaeda an international Islamic extremist group, responsible for attacks on military and civilian targets in various countries, the most notable being the attacks on the US on 9/11 alternative dispute resolution dispute resolution processes, such as mediation, arbitration and conciliation, that do not involve courts anarchy the absence of laws and government appeal an application to have a higher court reconsider a lower court’s decision, on the basis of an error of law
appellate jurisdiction the ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions apprehended violence orders court orders to protect a person who fears violence or harassment from a particular person. In NSW, ‘apprehended personal violence orders’ prohibit violence between members of the public; ‘apprehended domestic violence orders’ prohibit violence in the context of a family. arbitration a form of alternative dispute resolution in which the disputing parties present their cases before an arbitrator, who makes a decision that is binding on the parties Australian Federal Police the federal police agency of the Commonwealth of Australia, set up to enforce the federal laws and to protect the interests of Australia both domestically and internationally balance of power the power held by the political party whose vote is needed to pass legislation; usually determined in the upper house of parliament under the Westminster system of government balance of probabilities the standard of proof required in a civil case in order for a plaintiff to succeed in proving the case against the defendant beyond reasonable doubt the standard of proof required in a criminal case in order for the prosecution (the state) to obtain a conviction against the accused bicameral containing two chambers or houses of parliament bill a drafted law that has not yet been passed by parliament
bill of rights a statement of basic human rights and privileges bipartisan having the support of the two major political parties bodily privacy protection from physically invasive procedures without the person’s consent bookmaking the activity of calculating odds on sporting and other events and taking bets burden of proof the responsibility of a party to prove a case in court capital punishment the practice of sentencing a person to death by judicial process; also referred to as the ‘death penalty’ caution a formal notice given to a young offender where the offence is more serious than one appropriately dealt with by a warning Central Intelligence Agency (CIA) the spy agency of the United States of America, responsible for gathering national security intelligence chapter a local branch of a motorcycle club children generally persons aged 15 years and younger, depending on the legal context civil jurisdiction the power of a court to hear matters involving disputes between private individuals, and to award civil remedies civil liberties basic individual rights, such as freedom of speech and religion, which are protected by law coercive powers special powers sometimes given to a commission or police task force that allow it to summon any witness to give evidence or produce any documents – these powers are usually only vested in courts
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colours a motor cycle club’s standard vest showing the club’s patches on the back as a mark of identification committal hearings inquiries held in the Local or Magistrates’ Court to determine whether there is enough evidence against the defendant to warrant a trial in a higher court (this is called establishing a prima facie case) common law law made by courts; historically, law common to England Commonwealth Director of Public Prosecutions (CDPP) independent prosecuting agency established by a federal Act to prosecute alleged offences under federal laws complainant a person alleging that a sexual assault has been committed against him or her conciliation a method of legal dispute resolution involving a third party who helps the parties to reach agreement. The conciliator takes an active role, advising the parties, suggesting alternatives and encouraging the parties to reach agreement, but does not make the decision for them concurrent powers existing at the same time; powers held by both state and federal parliaments consent (1) free and voluntary agreement by a rational person who is able to understand and make a decision about the matter to which he or she agrees; (2) free and voluntary agreement to sexual intercourse conspiracy theories speculation that there is a cover-up of the information surrounding a significant event by government or other authorities contempt of court words or actions that show a disregard for the authority of the court or interfere with its powers control order an order made by a court, government official or police officer to restrict an individual’s liberty, for example from doing a specified act or being in a specified place
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conveyancers people who deal professionally with the legal and practical matters involved in the transfer of titles to property when real estate is sold and purchased
cyberbullying harassment using digital media such as websites, e-mail, chat rooms, social networking pages or instant messaging
copyright an exclusive right to publish, copy, publicly perform, broadcast, or make an adaptation of certain forms of expression, namely sounds, words or visual images
cyberspace the ‘environment’ in which electronic communication occurs; the culture of the internet
copyright infringement the unauthorised use of copyright material in a manner that violates the owner’s rights copyright notice a notice added to a work to inform people of who owns the copyright and when the work was created, e.g. ‘© Random Business Pty Ltd 2010’
cyberstalking repeated harassment using e-mail, textmessaging or other digital media with the intention of causing fear or intimidation damages monetary compensation for harm or loss suffered declaration a formal statement of the parties’ position on a particular issue. Declarations are not legally binding under international law.
coronial inquests investigations into deaths that have occurred in unusual circumstances, held in the Coroner’s Court and overseen by a magistrate called the Coroner
de facto relationship (from the Latin term meaning ‘existing in fact’): a relationship between two adults who are not married but are living together as a couple
corporal punishment the physical punishment of people, especially of children, by hitting them
defamation the act of making statements or suggestions that harm someone’s reputation in the community
corporations law legislation that regulates corporations and the securities and futures industry in Australia; it is administered by the Australian Securities and Investments Commission (ASIC) courts of equity historically, courts whose decisions were more discretionary and based on moral principles, and which served as an antidote to the inflexibility of the common law credibility trustworthiness, reliability, believability cross-examination questioning a witness called by the other side, to produce information relevant to one’s case or to call the witness’s credibility into question customary law principles and procedures that have developed according to the customs of a people or nation, or groups of nations, and are treated as obligatory customs collective habits or traditions that have developed in a society over a long period of time
defendant the person who is accused of a crime or a civil wrong; in a criminal case, the defendant is also referred to as the accused delegated legislation laws made by authorities other than parliament, who are delegated the power to do this by an Act of Parliament digital copyright copyright as it applies to digital media digital dossier all the types of information about a person that he or she has deliberately or unintentionally put onto the internet, held in multiple locations digital piracy unauthorised reproduction and distribution of digital music, software, videos or other material, often for profit direct discrimination a practice or policy of treating a person or group of people less favourably than another person or group in the same position, on the basis of sex, race, national or ethnic origin, age, sexuality or other characteristic
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dispossession the removal or expulsion of people from their traditional lands doli incapax a Latin term meaning ‘incapable of wrong’; the presumption that a child under 10 years of age cannot be held legally responsible for his or her actions and cannot be guilty of a criminal or civil offence domestic law the law of a nation download to receive data from a central system to one’s own, local network or computer draconian laws laws that are excessively harsh or severe – from Draco, a Greek legislator (7th century CE) whose laws imposed cruel and severe penalties for crimes Dreamtime also known as ‘the Dreaming’, the source of Indigenous Australian customary law elders older men and women of recognised wisdom and authority, who are the keepers of traditional knowledge within Indigenous communities; they are responsible for such things as initiations and the handing down of punishments when community laws are broken employment contract a contract between an employer and employee(s) which sets out matters including the pay, hours, working conditions, benefits and obligations of the employee and the rights and responsibilities of the employer entered into force (of a treaty) having become binding upon those states which have consented to be bound by it equality the state or quality of being equal, that is, of having the same rights or status equity the body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness estate all of the property that a person leaves upon death
ethics (1) rules or standards governing the conduct of a person or the members of a profession; (2) a major branch of philosophy, which investigates the nature of values and of right and wrong conduct examination in chief questioning a witness, by the barrister who called that witness exclusive powers powers that can be exercised only by the federal parliament ex parte (Latin) ‘from one side’; in a case this means the other side is absent or unrepresented express consent consent given directly, either oral or written external affairs power the power of the Commonwealth to legislate on international matters involving Australia; interpreted by the High Court to mean that when the Commonwealth signs an international treaty or convention it has the authority to enact laws to give effect to this international law within Australia extortion obtaining money or property from a person or group by force, intimidation or illegal power extradition the handing over of a person accused of a crime by the authorities of the country where he or she has taken refuge, to the authorities of the country where the crime was committed fairness free from bias, dishonesty, or injustice; a concept commonly related to everyday activities
fiscal relating to government financial matters forensic relating to the detection and investigation of crime format-shifting copying books, journals, photos or videos from one format to another format, for example scanning a photo to digital format or printing a newspaper article foundling a deserted infant whose parents’ identity is unknown
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disinhibition effect the tendency to say and do things in cyberspace that the person wouldn’t ordinarily say or do in the face-to-face world
fraud a dishonest act, done intentionally in order to deceive freedom of information (FOI) the principle that people should be able to have access to information relating to the administration of government decision-making and information held by the government. FOI legislation governs the processes of obtaining this information, at state and federal level. gender segregation the separation of people according to their gender General Assembly the main body of the United Nations, made up of all of the member nations glass ceiling an invisible barrier that prevents women from rising in an organisation through promotion; on the face of it, a company may not directly discriminate, but subtle practices may still discourage women or prevent them from being promoted to more responsible and better paid positions
federation the process of uniting several states to form a single national government
guarantor a person who gives a formal promise that someone else’s contract will be fulfilled, often backed by some form of asset that will stand as collateral to secure the promise
feminism the advocacy of rights for women on the basis of the equality of men and women; there are many varieties of feminist ideas in political and social thought
guilt by association criminal liability imposed for associating with another person who commits a crime, rather than for committing that crime oneself
file sharing the practice of distributing electronically stored information such as computer programs, music and video files, especially through the use of peerto-peer (P2P) networks
Hansard a full account of what is said in parliament or in parliamentary inquiries; named for English printer T. C. Hansard (1776–1833), who first printed a parliamentary transcript
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harmonisation agreement among the laws of different jurisdictions homicide the act of killing another human being hung jury a jury that is unable to reach agreement identity theft obtaining or using the identity of another person in order to commit a range of fraudulent activities, usually to obtain financial gain illicit drug also called an illegal drug; a drug that is prohibited by law implied rights civil and political rights that can be inferred from the Constitution, rather than being expressly stated in camera (Latin) privately; only specified persons such as the judge can be present during the testimony or proceeding indictable offences serious criminal offences that require an indictment (a formal, written charge) and a preliminary hearing; they are typically tried before a judge and jury and are subject to a greater penalty indictment information presented for the prosecution of one or more criminal offences; a formal written charge indirect discrimination practices or policies that appear to be neutral or fair because they treat everyone in the same way, but which adversely affect a higher proportion of people from one particular group information privacy protection against inappropriate handling of a person’s personal information, with rules for the collection and handling of personal data and records injunction a court order requiring an individual or organisation to perform, or (more commonly) not to perform a particular action inquisitorial system a legal system where the court or a part of the court (e.g. the judge) is actively involved in conducting the trial and determining what questions to ask; used in some countries with civil legal systems as opposed to common law systems
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intellectual property intangible property that has commercial value and can be protected by law, e.g. text, images, designs, inventions and computer programs internet a global network of interconnected computer networks that allows users to obtain and share information in a number of ways internet piracy unauthorised downloading or distribution of copyrighted material by means of the internet Internet Service Providers (ISPs) companies that offer customers access to the internet Islamic extremists people who follow an extreme version of the Islamic religion which sanctions the use of violence to achieve their objectives Jemaah Islamiyah a radical Islamic organisation that has links with Al Qaeda jihad in Islam, a term meaning ‘struggle’; used without any qualifiers it is generally understood in the West to refer to a ‘holy war’ on behalf of Islam jurisdiction the powers of a court, depending on its geographic area, the type of matters that can be decided, and the type of remedies that can be sought jury a group of people who listen to all of the evidence in a court case and decide on the verdict justice the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved juvenile a child or young person, generally under 18 years of age, although this may vary depending on the context kinship family relationships, including all extended family relationships; an important part of Indigenous cultures and values, which dictate how all people in the group behave toward each other laissez-faire a French word literally translated as ‘allow to do’, used to
describe economic philosophies that government should not intervene in business; may also be used in a broader sense of minimal government intervention in most aspects of society larceny taking another person’s property with intent to permanently deprive the owner of the property; also known as stealing law a set of rules imposed on all members of a community which are officially recognised, binding and enforceable by persons or organisations such as the police and/or courts law enforcement agencies those bodies that have the role of enforcing the law; they are created by Acts of Parliament and include the police and some government departments legal drug a drug that is not prohibited under the law, although some other restrictions may apply legal system the system of courts, prosecutors and police in a country legislative powers the legal power or capacity to make laws libertarians advocates of minimal government control or interference in the lives of individuals mandamus a court order compelling a government official or organisation to perform a particular task martial law military government and laws imposed on civilian society, which overrides civil law massacre the intentional killing of a large number of people mediation (1) a process in which two parties are brought together for the purpose of discussing and resolving a conflict; (2) a form of alternative dispute resolution designed to help two (or more) parties, in the presence of a neutral third party, to reach an agreement merits review analysis of the facts presented in a case, and often the policy choices that led to the decision
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mitigation making the severity of an offence or a sentence milder or less severe money laundering disguising money obtained from illegal activities to make it appear legal mule recruitment the attempt to procure a person (the ‘mule’) to receive and deliver illegal funds to criminals abroad or at home without the knowledge of the ‘mule’; this is usually done through a fake company and may involve getting an unsuspecting employee to sign a contract and transfer funds on behalf of organised criminals. nation-state a politically independent country native title the right of Indigenous people to their traditional lands natural justice the body of principles used to ensure the fairness and justice of the decisionmaking procedures of courts; in Australia it generally refers to the right to present your case, the right to freedom from bias by decision-makers, and the right to a decision based on logically relevant evidence negligence carelessness; a tort that involves breach of a duty of care resulting in harm that could be foreseen negotiation any dialogue intended to resolve disputes and/or produce an agreement on further courses of action nomadic a term used to describe people who tend to travel and change settlements frequently obiter dicta (Latin) comments from a judge in a case that are not directly relevant to the case, and therefore not legally binding (singular: obiter dictum) on remand (of an accused) in custody pending and/or during his or her trial
online predators people with malicious intent, such as sex offenders, pedophiles, who give false and misleading identities with the aim of enticing their victims into harmful encounters online or in real life onus the burden or duty of proving the case to the court
peer-to-peer (P2P) networks computer networks in which individual participants are directly connected to each other, rather than through a central server piracy (1) an illegal act of robbery of a ship at sea, outside the jurisdiction of any state; (2) the infringement of copyright
opened for signature (of a treaty) having negotiations concluded and ready for parties’ signatures. Many treaties, especially those convened by the UN, will be open for signature only until a certain date; others, such as the Geneva Conventions, are open for signature indefinitely.
plaintiff the person who initiates a civil action
opinio juris sive necessitatis (Latin) ‘opinion that an act is necessary by rule of law’: the principle that for the practice of a state to be customary international law, the state must believe that international law requires it
poverty line the minimum level of income needed to meet basic necessities and below which a household is defined as poor; an adequate standard of living and thus the poverty line will be different for different countries
optional protocol an addendum to a treaty, agreed to by the parties at a later date, to create enforcement provisions or to interpret the treaty in light of later developments organised crime illegal activities organised by criminal groups or enterprises, most commonly for the purpose of generating financial profit original jurisdiction the ability or power of a court to hear a case in the first instance outlaw motorcycle gangs (OMCGs) organisations whose members use the structure of a motorcycle club as a front for criminal activity pastoralists farmers raising sheep or cattle, usually on large areas of land patch a symbol or club logo attached to the back of a motorcycle club member’s vest patents rights granted for any device, substance, method or process which is new, inventive or useful
pleadings written statements of the parties to a civil dispute that set out the issues to be decided by the court
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ministerial discretion power granted to a minister under an Act to make a specified decision or order
political autonomy selfdetermination, independence
precedent a judgment that is authority for a legal principle, and that serves to provide guidance for deciding cases that have similar facts prescription drug a type of legal drug that can be obtained only by a doctor’s prescription prima facie (Latin) ‘on the face’; at first sight: having sufficient evidence established against a defendant to warrant a trial in a higher court of law privacy a person’s right to be free from unwanted intrusion or public scrutiny private law the body of law governing relationships between individuals (e.g. contract law, torts, family law and property law) pro bono a Latin term meaning ‘for the public good’, used to describe work that is done by a lawyer or barrister on a voluntary basis and without payment, where there are issues of community concern or significant effect on disadvantaged groups
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procedural fairness / natural justice the body of principles used to ensure the fairness and justice of the decision-making procedures of courts; in Australia it generally refers to the right to present your case, the right to freedom from bias by decision-makers, and the right to a decision based on logically relevant evidence prohibited person a person prohibited from working in childrelated employment because of a conviction of a serious sex offence, murder of a child, or an offence involving violence toward a child prohibition a court order that forbids a lower level court from hearing or taking further action in a case or matter prosecutor the person formally conducting legal proceedings against someone accused of a criminal offence; the prosecutor acts on behalf of the state or the Crown public law the body of law governing relationships between individuals and the state, and the structure and operation of government itself (e.g. criminal, administrative, and constitutional law) public morality standards of behaviour generally agreed upon by the community public space areas set aside in which members of the community can associate and assemble question of law a disputed legal contention that is left for the judge to decide (for example whether certain evidence is admissible) R ‘R’ at the beginning of a case name refers to Regina (Latin for ‘Queen’). Since Australia is a constitutional monarchy this refers to our head of state on whose behalf the prosecution case is run. When the head of state is a male, as was the case in 1935, the ‘R’ stands for Rex, which is Latin for ‘King’. racial hatred abuse or denigration of a person because of his or her race, or verbal abuse or denigration of a race generally
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rail gauge the distance between the inner sides of the two rails of a train line ratify to formally confirm that the country intends to be bound by the treaty ratio decidendi (Latin) the legal reason for a judge’s decision reckless able to foresee negative consequences of doing something, but carrying on with the act regardless. Recklessness implies a state of mind that is not as strong as an intention to do something, but for some criminal offences it is considered equivalent to intention for the purpose of establishing fault. referendum the referral of a particular issue to the electorate for a vote reservation a statement made by a nation-state when signing or ratifying a treaty, that allows it to exclude certain provisions or modify them as they apply to the nation-state’s own practice residual powers those remaining matters on which the states can legislate, which are not referred to in the Constitution responsibilities legal or moral obligations to others rights legal or moral entitlements or permissions rule of law the principle that no one is above the law; the most important application of the rule of law is that governmental authority is exercised in accordance with written, publicly disclosed laws that are adopted and enforced in accordance with established procedural steps (due process) rules regulations or principles governing procedure or controlling conduct s abbreviation for ‘section’ of any legislation; ‘ss’ is the abbreviation for ‘sections’ (plural) sanction a penalty imposed on those who break the law, usually in the form of a fine or punishment
Security Council the arm of the United Nations responsible for maintaining world peace and security sedition words or acts said or done with the intention of urging others to use force against the government self-determination the right to determine one’s own acts without external influence; the freedom of the people of a given territory to determine their own political status or independence from their current state self-executing (of a treaty) automatically becoming binding on a state party to the treaty as soon as the treaty has been ratified separation of powers the doctrine that the powers and functions of the judiciary are separate from those of the legislature and the executive sexual assault a general term for criminal offences involving unwanted sexual contact; acts include unwanted touching or groping, indecent acts of other kinds, and rape sexual harassment any unwelcome sexual behaviour, such as sexual advances, suggestive comments, unwanted touching, written communication or gestures, especially in the workplace social values ethical standards that guide people in their thinking about aspects of their society space-shifting transferring music or a sound recording from one format to another or from one device to another, for example copying a music file from a computer to a portable player special leave approval granted by the High Court for a case to go before it on appeal specific performance an order requiring the defendant to perform the acts that the contract obliged him or her to perform sponsorship the support of an individual, event, or organisation financially or through the provision of products or services
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stare decisis a Latin term meaning ‘the decision stands’; the doctrine that a decision must be followed by all lower courts the state a term that is used to refer to the government and the people that it governs state police law enforcement agencies with statewide jurisdiction statute law law made by parliament suicide the intentional taking of one’s own life summary offences criminal offences that can be dealt with by a single judge without a jury and do not require a preliminary hearing superpower a country that has a dominant role in world politics and possesses military power in excess of other nations. At the end of the Second World War (1945) the USA and USSR were known as ‘superpowers’ because of their huge armies and nuclear arsenals. surety a sum of money provided to support an accused person’s undertaking that he or she will return to court for hearing at a later date, as a condition of granting bail; it is agreed that the money will be forfeited if the accused fails to appear table to place on the table for discussion tariff a tax that must be paid on imports or exports task force a special group or committee of experts formed for the express purpose of studying a particular problem technological protection measures tools or ‘locks’ that copyright owners use to prevent unauthorised copying or access to copyright materials
terms of reference a set of guidelines used to define the purpose and scope of an inquiry terra nullius ‘land belonging to no one’; the idea and legal concept that when the first Europeans came to Australia the land was owned by no one and thus was open to settlement. It has been judged legally invalid. terrorism violence or the threat of violence, directed at an innocent group of people for the purpose of coercing another party, such as a government, into a course of action that it would not otherwise pursue time-shifting recording a television or radio broadcast for later viewing or listening tortious wrongful; constituting a tort or breach of duty to others torts civil wrongs involving breach of a duty; torts include negligence, defamation, nuisance, and trespass to the person, goods or land
United Nations a world organisation dedicated to world peace and the sovereignty and equality of all its members upload to send data from a local system or computer to a central or remote system, for other users to view, hear, or use values principles, standards, or qualities considered worthwhile or desirable within a society vicarious liability the legal liability imposed on one person or agent (e.g. an employer) for the wrongful acts of another, when those acts were done within the scope of the legal relationship between them, such as employment ‘war on terror’ the term used in 2002 by US President George W. Bush to refer to his administration’s efforts to fight terrorism anywhere in the world using any means warning a formal notice given to a young offender, usually for a first minor offence
tort law the body of law that deals with civil wrongs including negligence, defamation, trespass and nuisance
White Australia Policy the government policy of allowing only Europeans and English-speaking people to immigrate to Australia
trade marks words, names, symbols, devices or any combination of these, used to identify and distinguish the goods or services of one company from those of another
‘working with children check’ a check by the NSW Commission for Children and Young People on the appropriateness of a person in NSW to work in child-related employment.
treaty an international agreement concluded between states in written form and governed by the guidelines of international law; treaties may also be referred to as conventions or covenants.
World Wide Web a system of documents that are accessible on the internet and that are connected to each other through hyperlinks on which the user can click to be taken to another location. The World Wide Web is not the same thing as the internet.
trespass to the person a tort involving direct contact with a person’s body without that person’s consent tyranny rule by a single leader holding absolute power in a nation-state ultra vires (Latin) beyond the power or authority legally held by a person, institution or statute to perform an act
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standard of proof the degree or level of proof required in order for the plaintiff (in a civil case) or the prosecution (in a criminal case) to prove their case
young people in NSW, persons aged 16–18 years Youth Justice Conferences meetings of all the people who may be affected by a crime committed by a young offender; used to help them to accept responsibility for their actions while avoiding the court system
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Index
A
Australian Childhood Foundation 204
Aboriginal and Torres Strait Islander Peoples
Australian Constitution
access to civil law 9
amending 36, 93
customary law 5, 43–7
federal legislative powers 31, 33, 34–5
disadvantages 44
judicial system 61
government policies 98
key features 61, 136, 308
language and culture 43–6
religious freedom 139
legal status 101 see also native title
separation of powers 38 Australian Council of Trade Unions (ACTU) 160, 204,
Aboriginal Land Rights Act 97, 108 access 8–9
225 Australian Crime Commission (ACC) 152–3, 260, 286,
ACTU see Australian Council of Trade Unions (ACTU) Administrative Appeals Tribunal (AAT) 43
291, 294 Australian Customs and Border Protection Service
Administrative Decisions (Judicial Review) Act 1977 (Cth) 17, 43, 61
155 Australian Federal Police (AFP) 151–2, 240, 245, 271,
Administrative Decisions Tribunal (ADT) 61 Administrative Decisions Tribunal Act 17
275, 281, 298 Australian Human Rights Commission 114–17, 166,
administrative law 25, 61 adversarial system 18, 66, 73
221–2, 229 Australian Law Reform Commission 88, 116, 179,
ADVO see Apprehended Domestic Violence Order affirmative action 225
205–7 Australian Security Intelligence Organisation (ASIO)
AFP see Australian Federal Police
154, 246
Al Qaeda 236–7, 239–40, 244, 246 alternative dispute resolution (ADR) 156–8
"
Amnesty International 49, 54, 91, 151, 160, 166, 279
balance of power 92
anarchy 12–13
balance of probabilities 65, 69, 82, 113, 203
Anti-Discrimination Act 97, 114, 165, 199, 215, 222,
Bali bombings 234–49
229
barristers 62, 71, 121, 124
Anti-Discrimination Board (ADB) 161, 165, 222
bicameral 27, 29, 32
anti-discrimination legislation 114, 116, 228–9
bill of rights 134–6, 139, 247
Anti-Terrorism Act 246–7, 268, 274, 280, 297
birth
appeals 22, 24–5, 32, 39, 41, 43, 61, 105, 116, 311
registration 197–8
appeals to High Court 38–9, 41–2
technologies 84
appellate jurisdiction 24–5, 39, 41
Births Deaths and Marriages Act 193, 197–8
Apprehended Domestic Violence Order (ADVO) 82–3
Britain see United Kingdom
arbitration 34, 116, 156–7, 160
Bryant, Martin 250–57
arrest 13, 66, 83, 124, 150, 152, 154, 205–6, 241–2,
Builders Labourers Federation 160
246–7 ASIO see Australian Security Intelligence Organisation
burden of proof 67, 69 by-laws 29
assimilation Indigenous peoples 99 Attorney-General 26–7, 88, 166, 244, 272, 280, 298–9, 313 Australia Act 1986 (Cth) 17, 39
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C Cabinet 28, 30, 38, 90, 159, 223 capital punishment 45, 49, 80–1, 209 care and protection 24, 194, 198–9, 202–3
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care application 210
federation process 31–2
case law 20, 116, 308, 311
High Court 21, 23, 25–6, 32–3, 35–6, 38–42, 61–2, 78, 92, 98, 103–108, 136, 139–40, 166,
cautions 200–1
179, 198, 275, 316
CDPP see Commonwealth Director of Public
judicial review 43, 55, 61, 162, 165
Prosecutions
separation of powers 38
certiorari 163
transfer of power from Britain 31–2
child care 161, 163, 215, 217–8, 225–7, 230
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
child labour 194–5, 207, 209
220–1, 227
Children (Criminal Proceedings) Act 200, 207 Children (Protection and Parental Responsibility) Act
Convention on the Rights of the Child (CROC) 49, 55, 166, 194, 196, 201
193, 201, 209
Australia’s obligations under 201
children 24, 43, 68, 82–3, 91, 99, 102, 119, 132,
child executions 49
137–8, 152, 155, 158, 180–1, 192–211 see also Convention on the Rights of the Child (CROC) Children and Young Persons (Care and Protection) Act 193–4, 198–9, 202–3
copyright 25, 176–7, 306–19 Copyright Act 176, 308–10, 314–5 coronial inquiries 24, 67 corporations law 24
Children’s Court Act 193, 203
Court of Appeal 25, 196, 246–7, 311
Children’s Court
court-made law 18
hearings 23–4, 68, 203
courts
children’s rights 196
of equity 18
China 52, 186
procedures 23 State and Federal 22–6
circle sentencing 81, 145 civil court proceedings 18, 65–9
Covenant on Civil and Political Rights see International Covenant on Civil and Political
civil law 18, 60, 62, 65–6, 70, 73, 111–3, 117, 197,
Rights (ICCPR)
314, 325 civil law systems 73
Covenant on Economic Social and Cultural Rights see International Covenant on Economic Social
civil liberties 38, 180–1, 188, 313
and Cultural Rights (ICESCR)
Clarke Inquiry 273, 280–81 Commission for Children and Young People 198,
Crimes Act 3, 59, 60, 83, 87, 122, 150–1, 172, 183, 247, 280
202 Commission for Children and Young People Act 202–3
Crimes Legislation Amendment (Police and Public Safety) Act 201, 274, 298
commissions of inquiry 165 committal hearings 24
criminal law
Committee on the Rights of the Child 196, 201, 209
court proceedings 66–70
common law 18–22, 36, 44, 55, 60, 62–3, 65, 73,
vs civil law 60–3
87, 101, 103, 132–3, 136, 145, 196, 198–9,
CROC see Convention on the Rights of the Child (CROC)
332 Commonwealth Director of Public Prosecutions (CDPP) 66, 83, 119, 165, 273, 275–6 Commonwealth of Australia Constitution Act 1900 (UK) 17, 31–2
I nd ex
child care proceedings 203
cross-examination 67, 69, 121 customary law 5, 43–7, 49, 73 customs 5, 7, 10, 12, 33, 45, 48, 98, 107 Customs Act 41, 246, 324
Commonwealth v Tasmania 35, 40
cyberbullying 178
Community Justice Centres (CJCs) 157
cybercrime 184–8
concurrent powers 33
cyberspace 170–90
conscientious objectors 137
cyberstalking 178
Constitution see Australian Constitution constitutional law 61
D
constitutional system
damages 24–5, 62–3, 69, 112–3, 117, 142, 229
division of power 32–3, 39
de facto relationships 33, 79–83
Index
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death penalty 49, 54, 244
equal pay see pay equity
deaths in custody 165
equality 8–9, 117, 143, 214
Declaration of Human Rights see Universal
equity 18–20, 106, 216, 227
Declaration of Human Rights (UDHR)
ethics 6–7, 12, 45, 78, 170
defamation 22, 25, 63, 141–2, 199
European Union 54, 135, 184
defence 31, 33, 66, 69, 72, 121, 124
euthanasia 181, 134
defendants 65, 72
ex parte 41
delegated authority 137
exclusive powers 33
delegated legislation 29
Executive Council 28–9
democracy 38, 90, 134, 239
external reviews 61, 161–2
Department of Community Services (DOCS) 83, 203,
extradition 186, 315–6
205 detention centres 158–9, 207
F
development of 18–20
fairness see procedural fairness
obedience to 10
Family Court 23, 25, 38, 81, 91, 151, 203
vs rules and customs 4–7
Family Law Act 55, 77, 91, 196–7, 215
dictatorship 38, 239
Federal Court 21–2, 24–6, 36, 38–9, 41, 43, 61, 105–8
digital copyright 304–19
federal parliament
discrimination 55, 90, 104, 114–5, 134, 166, 199,
legislative powers 33, 34
215
role and structure 27–8
direct discrimination 220–2, 230
Federation 31–2, 38, 48
indirect discrimination 220–2
file sharing 304–19
District Court 21, 23–4, 71, 89, 113, 124
Firearms Act 82, 292
doctrine of precedent 21–22
Franklin Dam case see Commonwealth v Tasmania
doli incapax 8
Fraser Island 40–1
domestic law 48
fraud 22, 24, 86–7, 153, 165, 173–4, 185, 287
domestic violence 82–3
free speech 139–41, 181–2, 186–8
Donoghue v. Stevenson 59, 64
Freedom of Information Act 149, 161
Dreamtime 44 Drink or Die 316
G
drug testing 320–339
General Assembly (UN) 49–54, 169, 228
duties 6, 133, 150, 163, 214
Geneva Conventions 48, 240
duty of care 64, 113, 117, 133, 331
genocide 48–49 Gillick v West Norfolk and Wisbech Health Authority
%
196, 198–9
East Timor 145, 236, 239
glass ceiling 229
elders 45, 47, 98
Gove land rights case see Milirrpum v Nabalco Pty Ltd
employment
Governor-General 27–30, 36, 38–9,
children 202
Greenpeace 54, 91, 160
law 47, 159, 204
Griffiths, Hew Raymond 315–6
sex discrimination 214–5, 221, 223, 229
Guantanamo Bay 240–1
women 214–7
gun laws 258–63
enforcement 12, 45, 48, 81, 150, 152–4, 172, 174,
Gutnick v Dow Jones & Co Inc 17, 22
181, 183, 185, 187, 229, 236, 240, 245–6, 260, 268, 279, 286, 291, 294, 300, 310, 313, 325 equal opportunity 111, 114, 161, 165–6, 205, 218, 222–3, 228 Equal Opportunity for Women Agency (EOWA) 224 (CD) Equal Opportunity for Women in the Workplace Act 213, 223–4, 230
350
H hacking 172–3, 183 Haneef, Mohamed 266–83 harassment 150, 178, 198, 220–2, 227, 229 High Court 21, 23, 25–6, 32–3, 35–6, 38–42, 61–2, 78, 92, 98, 103–108, 136, 139–40, 166, 179, 198, 275, 316
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HIV/AIDS 227
J
House of Representatives 27, 32, 36, 38, 89, 106–7
Jemaah Islamiyah 238–40, 270
Howard, John 92, 108, 159, 181, 259, 262, 277, 279
judges 6, 10, 18, 20–22, 65–73, 92, 104–5, 107,
human rights 25, 48–55, 81, 132, 134, 136, 143–5,
122
160, 166, 186, 196, 201, 205, 209, 218, 220,
judicial review 43, 55, 61, 162, 165
222, 226–30
judiciary 38–9, 61, 136, 294
Human Rights and Equal Opportunity Commission
jurisdiction 22, 39 jury 18–9, 24–5, 66–8, 71–2, 88–9, 120–1, 132,
(HREOC) see Australian Human Rights
136, 142
Commission Human Rights and Equal Opportunity Commission Act 149, 166, 213, 222
hung jury 89 Jury Act 89 jury service 72, 217, 231
Hussein, Saddam 13
justice 8–9, 19–20, 28, 43, 81–3, 106, 112–3, 120
I
K
identity theft 86–7
Kazaa 311–2
immigration detention centres
Kids Helpline 204
see detention centres
I nd ex
see also Universal Declaration of Human Rights
kinship 45
Independent Commission Against Corruption (ICAC) 165–6 indictable offences 23–4, 66, 84, 112, 200, 207, 324 Indigenous Australians see Aboriginal and Torres Strait Islander Peoples
L land rights 103, 108 larceny 24 law enforcement see enforcement law reform
indirect discrimination see discrimination
agencies of 88–91
Indonesia 18, 49, 145, 236–9, 240–7
and native title 98–109
injunctions 39, 63, 69, 112, 115, 163, 173
and sexual assault 118–24
inquisitorial system 18, 73
and sport 110–17
intellectual property 65
conditions that give rise to 78–9
and digital copyright 306–8, 311
definition 78
in cyberspace 175–7, 184 intergovernmental organisations (IGOs) 54, 93
mechanisms of 92–3 law
internal reviews 161
definition 4–7
International Court of Justice (ICJ) 50, 53–7
legal aid 91, 203, 206
International Covenant on Civil and Political Rights
legal professions 70–2
(ICCPR) 49–50, 55, 144, 166, 247 International Covenant on Economic Social and
legal system 5, 7–8, 18–30 legislation
Cultural Rights (ICESCR) 50, 144, 166
delegated 29
International Criminal Court (ICC) 49–50
passing through parliament 28–30
international customary law 49–50
libel 139–40
international law 48–55
lobby groups 91–2
differences between domestic and 48
Local Courts 19, 21–4, 66, 83, 116
relevance to Australian law 55 sources 48–9 international treaties and declarations 49–50 internet 5, 18, 22, 41, 90, 153, 159, 170–188, 287, 306, 309–10 piracy 306–7
M Mabo Eddie 98, 103–4, 106 Mabo v Queensland 98, 109 magistrates 71 Magistrates’ Court 23–5, 38, 67, 71, 115, 253, 273, 275, 297
Internet Service Providers (ISPs) 181, 186, 309, 317
mandamus 39
Israel 237
Ma¯ori land rights 105
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marriage 34, 45, 79–80, 197–8, 217
parliamentary committees 89–90
Marriage Act 79–80
participation of women 220
media 72, 90
patents 176–7, 188, 306
Members of Parliament (MPs) 27, 29, 91, 105, 159
pay equity 216, 227, 230
Milirrpum v Nabalco Pty Ltd 103
plaintiff 63, 72
Milperra Massacre 291–2, 298
police 6, 8, 10, 66, 82–3, 119, 150–3 New South Wales Police Force 150, 165, 293, 295,
Mugabe, Robert 13
326
Murphyores v The Commonwealth 40–1
Australian Federal Police (AFP) 151–2, 240, 245,
Myall Creek massacre 102
271, 275, 281, 298
.
Port Arthur massacre 250–65 gun reform after 258–63
nation-state 5, 48–9, 51–2, 54 nationalism 31
poverty line 217
native title 98–109
precedent 20–22, 92
Native Title Act 104, 108–9
prima facie 71, 163
Native Title Amendment Act 108
privacy 25, 85, 88, 155, 162, 166, 171, 174, 179
Native Title Tribunal 107–8
Privacy Act 162, 179–80, 332
natural justice 9, 43
Privacy and Personal Information Protection Act 162, 332
negligence 25, 63–4, 68, 111, 113, 115, 117, 133, 199
private law 60–70
New Zealand 18, 105, 134–5, 329
Privy Council 39
non-government organisations (NGOs) 54, 90–1
procedural fairness 9, 43
NSW Aboriginal Land Council (NSWALC) 108
prohibition 39
NSW Commission for Children and Young People
Property (Relationships) Legislation Amendment Act 79
198, 202–3
property law 44, 62, 65, 175
NSW Law Reform Commission 88–9
prosecutor 8, 65–6, 83, 123, 241, 271
NSW Ombudsman 163–4
protection children see care and protection
O
Indigenous peoples 99
obiter dicta 21
public law 60–70
observation of court proceedings 70
public morality 78
Office for Women (NSW) 223
public space 201, 205–6, 209
Office for Women (OfW) 223 ombudsmen
R
offices of 163
R v. Brislan; ex parte Williams 41
NSW Ombudsman 93, 151
Racial Discrimination Act 97, 104, 117, 132, 166
OMCGs see outlaw motorcycle gangs
Racial Hatred Act 178
opinio juris sive necessitates 49
rail gauges 31–2
optional protocol 166, 228–9
ratification 55, 143, 201, 209, 227
ordinances 29
ratio decidendi 21
organised crime 153, 260, 286–7, 291, 294–8, 300
reasonable doubt 65
original jurisdiction 25, 39–41
Red Cross 54
Osland v R 41–2
referendum process 31–2, 36, 38, 80, 102, 145
outlaw motorcycle gangs 284–303
referendums Federation 31–2
P
1967 referendum 99, 102
paid maternity leave 225, 227
refugees 54, 93, 155, 166
parliament
regulations 6, 11, 29, 35, 170–1, 174, 181–2, 140,
passing bill through 30
352
324, 329
role of 18–20, 27–8, 105–6, 108–9, 115–6, 122
Reno v American Civil Liberties Union 180–182
structure of 27–8
republic referendum 36
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technology 41, 84–5, 123, 152, 168–90, 287, 306,
rights
309, 312, 317
common law vs statutory 18–19 domestic 48
terra nullius 44, 92, 98, 101–4, 106, 109
legal vs moral and customary 8–9,
terrorist attacks 236–7, 268–70, 272, 279, 297
see also human rights; land rights
torts 60–5, 111, 113, 117, 132–3, 179, 198–9, 332
royal assent 30
torture 48, 53–5, 133, 143
royal commissions 93, 103, 165
Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 324
Rudd, Kevin 80, 92, 106, 244 rule of law 10, 185, 236, 240, 281, 296, 301
trade unions see Australian Council of Trade Unions (ACTU)
rules need for 4–7, 61, 68, 73
trademarks 175–7, 188, 306
vs laws and customs 5–7
trial by ordeal 19–20
I nd ex
tribunals 50, 112, 161, 330, 335
3
tyranny 12–13
same-sex relationships 79–80 sanctions 10, 45
5
Security Council (UN) 51–4, 246
ultra vires 35
separation of powers 32, 38, 268, 274–5, 294, 301
United Kingdom 18–19, 22, 52, 134, 270–1, 279
Sex Discrimination Act 55, 97, 115–6, 213, 215,
United Nations (UN)
221–2, 229–30
charter 49, 51–2
sex slavery 227
legal decisions 50–1, 93
sexual harassment 220–2, 227, 229–30
obligations of governments 51–2
Shopfront Youth Legal Centre 207
peacekeeping 52
slander 141
see also Conventions entries; International
smoking bans 11
Covenants entries; Universal Declaration of
solicitors 67, 71 sources of law
Human Rights (UDHR) United States
Australian law 55
bill of rights 135
international law 49–51, 55 South Australia v Commonwealth 40
juvenile executions 48, 196 Universal Declaration of Human Rights (UDHR)
sovereignty 48, 51, 101, 107, 188
50, 143–4, 166, 220
spam 169, 174–5 Spam Act 169, 174–5, 183
6
spiritual nature of customary law 44
values 7–9, 78–9
standard of proof 65
Vietnam War 137, 290
stare decisis 21 state and territory courts 22–5
7
state power
Whistleblowers Australia (WBA) 159
formal (i.e. legal) means to challenge 161–6
White Australia Policy 31
informal (i.e. non-legal) means to challenge
Whitlam, Gough 103, 120
158–60
Wik case 106–7
statute law 18, 27–30
William the Conqueror 20
statutory authority 43, 115, 137, 174
WIPO see World Intellectual Property Organization
summary offences 23, 66, 84, 200, 324
Wireless Telegraphy Act 41
Summary Offences Act 131, 139
women
Supreme Court 21–6, 38, 41, 49, 66, 71, 80, 103, 112, 139, 142, 158, 165, 173, 181
anti-discrimination legislation 114, 165, 215, 222, 225, 229–30 changing status 216–9
T Tampa incident 155 tariffs 31, 54, 93
indigenous women 219 protection of rights 220–5 Women’s Electoral Lobby (WEL) 226
Index
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Women’s Information and Referral Service 223
Y
Women’s Legal Status Act 216
Yorta Yorta native title case 107,109
workforce
Young Offenders Act 81
aging 216 gender segregation 227, 230
young person 192–211 legal definition 194
working with children check 202
Youth Action and Policy Association (YAPA) 205
World Intellectual Property Organization 184, 311
youth conferencing 207
World Trade Organization 176, 184, 311
Youth Justice Conferences 81
World Wide Web 171, 181 World Youth Day 140 WTO see World Trade Organization
354
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